William Karani & 47 others v Wamalwa Kijana & 2 others [1987] KECA 55 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a settlement your lawyer agrees to on your instructions binds you, even if you never signed anything.
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 appellants consented to the consent order of September 24, 1985
- 2.Whether the review application was competent once appeals had been preferred, given section 80 of the Civil Procedure Act and order XLIV rule 1
- 3.Whether the consent order was invalid because it departed from the reliefs in the plaint, omitted dissolution of partnership and acreage, and lacked advocates' signatures
- 4.Whether the consent order was unconscionable and whether it bound all 48 plaintiffs
Key legal issues
#Validity of the consent order and authority of the advocate
The consent order was valid; the advocate had clear express instructions from representatives of the plaintiffs, giving ostensible authority binding all plaintiffs
Most plaintiffs were present on the material date; four of those present instructed Mr Kamau on behalf of all, having themselves instructed him to file the action. Kamau testified emphatically that he had full instructions and that the plaintiffs were the architects of the orders. The judge believed that testimony. A consent order may omit pleaded reliefs, dissolution of partnership and acreage, since the parties' intention was final settlement, with an ex-gratia payment of Kshs 60,000 benefiting the plaintiffs.
Competence of review where an appeal has been preferred
Review is ousted once an appeal is taken; a party must elect between the two mutually exclusive procedures
Section 80 of the Civil Procedure Act and order XLIV establish appeal as the general method of curing errors, with review confined to cases where no appeal lies or none has been preferred. Both procedures cannot run at once; complaints in review merge into the appeal. Counsel's attempt to split issues between appeal and review was wrong; he had to choose, and having failed to elect, the appeals could not properly proceed, though the majority dismissed rather than struck them out.
Practice as to signatures on consent orders
The court commended, but did not make mandatory, the practice of parties and advocates signing consent orders
The judge ought to have caused each plaintiff present, each defendant and counsel to sign or thumb-print the consent order. The practice, already followed in the Court of Appeal, acts as a safeguard reducing subsequent argument about the consent order, but its absence did not invalidate this consent order since the proper test is consent itself.
Legal principles established
#- Once an appeal is preferred, review under section 80 and order XLIV is incompetent; the matters sought to be reviewed merge in the appeal
- A consent judgment entered on the instructions of the parties' advocate binds all the parties the advocate represents, even if they did not sign the order
- The validity of a consent order turns on whether the parties consented, not on conformity with the pleadings or formal features such as acreage or signatures
Court orders
#- 1.Both appeals dismissed
- 2.Costs to the first respondent
- 3.The second and third respondents will bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Held that the appellants consented to the order through their advocate Mr Kamau, who had clear express instructions; the consent order covered all plaintiffs; objections about omission of acreage, dissolution of partnership and absence of signatures did not affect validity; commended the practice of parties and advocates appending signatures to consent orders; would dismiss the appeals with costs to the first respondent.
I find there is no merit in the appeals and I would dismiss them for the grounds stated with costs to the first respondent.p. 2
Wrote the judgment
Would have struck out both appeals in limine for want of election between mutually exclusive procedures: once an appeal is preferred, review is ousted and the complaints must merge in the appeal. Nevertheless expressed the view, on Kamau's evidence and the cited authorities, that nothing was amiss with the consent order, and agreed with Nyarangi JA's proposed order as to costs.
Both appeals before this court, which were consolidated, must be struck out in limine for want of election between mutually exclusive causes of appeal.p. 2
Wrote the judgment
Held those who gave instructions had ostensible authority to consent on behalf of the others, that a consent may cover matters outside the pleadings so long as the parties intend finality, and that once the main appeal is filed any appeal from a refusal to review is washed away. Would dismiss the appeals and agreed with Nyarangi JA's costs order.
I would dismiss these appeals. I agree with the order proposed by Nyarangi JA that the court should make on costs.p. 5
- On appeal from
- High Court at Eldoret
- Civil Suit No 67 of 1985
- Jurisdiction invoked
- Statutory right of appeal against the orders of the High Court (Civil Procedure Act); first-instance appeal route to the Court of Appeal
- Consolidated with
- Civil Appeal No 43 of 1986
Relief refused
#Setting aside or review of the consent order of September 24, 1985
The court found a valid consent given through advocate Mr Kamau on express instructions, and review is incompetent once an appeal is preferred
Declaration that the consent order was a nullity for not disposing of the suit or matching the plaint's reliefs
Consent orders may settle matters outside the pleadings where the parties intend finality
Costs
Costs of the appeals to the first respondent; the second and third respondents will bear their own costs
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.
I find there is no merit in the appeals and I would dismiss them for the grounds stated with costs to the first respondent. The second and third respondents will bear their costs. As Platt and Gachuhi JJA agree, it is so ordered.
Once an appeal is taken, review is ousted and the matter to be remedied by review must merge in the appeal.
It matters not that the plaintiffs do not sign the order. They instructed their advocate on the matter and he acted in the best interests of all of them. The consent order, therefore, covers all of them.
There is no limit or fore under which a consent can take so as to finalise the whole dispute. The doors of negotiations are very wide.
Under section 80 of the Civil Procedure Act and order XLIV rule 1 of the Civil Procedure Rules once an appeal is preferred a review is incompetent.
Issues in the judgment
#Platt JA's proposed disposition (strike out both appeals) differs from the operative dismissal by Nyarangi and Gachuhi JJA, and Platt cites Waugh v HB Clifford & Sons Ltd with two different citations ((1982) 2 All ER 1097 and (1982) 1 All ER 1095)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "William Karani & 47 others v Wamalwa Kijana & 2 others [1987] KECA 55 (KLR)", Case Analysis (1987). Civil Appeal No 153 of 1986 (consolidated with Civil Appeal No 43 of 1986). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1987/55/eng@1987-03-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.