Wairagu & 2 others v Republic [2004] KECA 33 (KLR)
The bottom line
#A Kenyan court refused to undo an order both sides had agreed to, holding it can only be changed for fraud or mistake.
What this practically means
#Executive summary
#Key legal issues
#Whether the consent order of 23rd May, 2002 could be reviewed on the material availed by the Plaintiff
No. The grounds for reviewing a consent judgment must be grounds that would justify setting aside a contract - fraud, mistake or misrepresentation - or, per the passage adopted from Hiran v Kassam, fraud, collusion, an agreement contrary to the policy of the court, or consent given without sufficient material facts, in misapprehension or in ignorance of material facts. None was alleged or established, so the application failed.
The court applied Flora N Wasike v Destimo Wamboko and the passage quoted in Hiran v Kassam: an order made in the presence and with the consent of counsel binds the parties and those claiming under them and cannot be varied or discharged except for fraud, collusion, an agreement contrary to the policy of the court, or consent given without sufficient material facts, in misapprehension or in ignorance of material facts. The Plaintiff's own advocates had consented; she alleged no vitiating factor and Koimburi was her own preference. Her complaints concerned the arbitrator's conduct of the scrutiny, not the validity of the consent.
Whether Owen Njenga Koimburi's appointment as the Plaintiff's arbitrator could be revoked and he be replaced with Hezekiah W Gichohi
No. The appointment was part of the consent judgment and could be set aside only on the contract-setting-aside grounds. The alleged compromise rested on his refusal to consider the 1987 and 1988 receipts, which was a matter for the scrutiny process and the viva voce examination of his report, not a ground to undo the consent order.
The court held that the complaint about the rejected receipts has nothing to do with the consent order appointing the arbitrator. No fraud or compromise was established; the alleged bias arising from the defendant's advocates' letter of 2nd July, 2003 was not made out on the material. The proposed replacement, Hezekiah W Gichohi, was objected to as a debtor of the defendant, but the application failed at the threshold of the review grounds and the replacement could not be ordered.
Whether a party-appointed arbitrator acts as his appointer's advocate in the scrutiny
No. The arbitrator's mandate under the consent order was impartial scrutiny of the mortgage documents and accounts, culminating in a detailed report to be tested by viva voce evidence; he assumed no role of urging the appointing party's cause, and grievances about which documents he considered could not ground a review of the consent order.
The court found the Plaintiff had completely misapprehended the arbitrator's role, believing he was to urge her cause during the scrutiny; he assumed no such role. Any mistake in the report could be raised when the report was presented by viva voce evidence, as the consent order contemplated, rather than by seeking to displace the consent order that conferred the mandate.
Legal principles established
#- A consent judgment or order may be reviewed or set aside only on grounds that would justify setting aside a contract, such as fraud, mistake or misrepresentation - or, elaborated, fraud, collusion, an agreement contrary to the policy of the court, or consent given without sufficient material facts, in misapprehension or in ignorance of material facts
- An order made in the presence and with the consent of counsel binds all parties to the proceedings and those claiming under them, and cannot be varied or discharged except on the limited recognised grounds
- The appointment of an arbitrator made under a consent order is part of the consent judgment and may be revoked only on the same limited grounds
Court orders
#- 1.The Plaintiff's application by way of Notice of Motion dated 18th November, 2003 is dismissed
- 2.The dismissal is with costs - the costs of the application awarded against the Plaintiff
- Jurisdiction invoked
- Sections 3A and 80 of the Civil Procedure Act (Cap 21); Order 44 Rule 1(b) and Order 45 Rules 1 and 15(1)(a) and (b) of the Civil Procedure Rules; Sections 13(3), 16(1) and 19 of the Arbitration Act, No. 4 of 1995 - invoked for review of a consent order and revocation of an arbitrator's appointment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wairagu & 2 others v Republic [2004] KECA 33 (KLR)", Case Analysis (2004). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2004/33/eng@2004-09-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.