Onesmus Njoroge Thika v D H Ndegwa & another [1987] KECA 19 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a consent order you agree to is as binding as a court judgment and can't be undone casually.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellant could challenge the consent order of September 9, 1983 and the dismissal of October 19, 1983 by way of grounds in an appeal against the High Court ruling of June 12, 1984
- 2.Whether the consent order dated September 9, 1983 was a decree under Section 2 of the Civil Procedure Act
- 3.Whether Order 42 rule 1(g) and (h) applied to the material consent order
- 4.Whether the appeal should be struck out as incompetent
Key legal issues
#Character of a consent order disposing of all matters in controversy
Such a consent order is a decree under Section 2 of the Civil Procedure Act and is binding on the parties.
The court examined the consent order of September 9, 1983, which required filing and serving of particulars within 14 days on pain of dismissal, and held that it conclusively determined the parties' rights with regard to all matters in controversy. It therefore had the character of a decree, not a mere procedural order, and could not be circumvented by challenging a later order founded on it.
Whether Order 42 rule 1(g) and (h) applied to the consent order
It did not; the consent order did not set aside a default judgment and was not amenable to those provisions.
Counsel for the appellant argued that order 42 rule 1(g) and (h) applied. The court rejected this, noting that the consent order did not set aside judgment in default of appearance or pleading, nor judgment in consequence of non-appearance. The consent order stood on its own footing as a decree binding on the parties and could only be attacked by a separate action.
Competence of the appeal
The appeal was incompetent and was struck out.
The appellant never appealed against the orders of September 9 and October 19, 1983, which were binding on him. Setting aside the subsequent order of June 12, 1984 would not assist him because that order was founded on the unchallenged dismissal. The motion under rules 80 and 42 was therefore allowed and the appeal struck out with costs to the respondents.
Legal principles established
#- A consent order which conclusively determines the rights of the parties with regard to all matters in controversy is a decree under Section 2 of the Civil Procedure Act and is binding.
- An unappealed consent order is binding and cannot be challenged by reference in grounds of an appeal from a subsequent order.
- A consent order or judgment may only be set aside in an action specifically brought for that purpose on a ground that would invalidate the agreement.
Court orders
#- 1.The appeal be struck out as being incompetent
- 2.Costs of the application to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Not stated in judgment
- Jurisdiction invoked
- Not stated in judgment; application under rules 80 and 42 of the Court of Appeal Rules
Relief refused
#Appellant's attempt to impugn the consent order of September 9, 1983 and the dismissal order of October 19, 1983 through an appeal against the ruling of June 12, 1984
Those orders were not appealed against and were binding; a consent order can only be set aside in an action specifically brought for that purpose on a ground that would invalidate the agreement
Costs
Costs to the respondents
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The consent order dated September 9, 1983 on which the high court acted conclusively determined the rights of the parties with regard to all the matters in controversy and was therefore a decree: Section 2 of the Civil Procedure Act.
a judgment by consent is binding .. set aside and hat a consent order can be aside in an action acted specifically for that purpose on a ground that would invalidate the agreement
we allow the application and order that the appeal be struck out as being incompetent with costs to the respondents.
Issues in the judgment
#Judgment text contains apparent typographical/scanning errors, including a date discrepancy between 'the ruling of the high court dated June 12, 1985' and the earlier reference to dismissal of the application on June 12, 1984, and garbled passages in the passage on setting aside consent judgments
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Onesmus Njoroge Thika v D H Ndegwa & another [1987] KECA 19 (KLR)", Case Analysis (1987). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1987/19/eng@1987-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.