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Court of AppealPartially AllowedCivil Appeal 126 of 2005· [2007] KECA 176 (KLR)

SAMSON MUNIKAH practicing as MUNIKAH & COMPANY ADVOCATES v WEDUBE ESTATES LIMITED [2007] KECA 176 (KLR)

Court of Appeal of Kenya
23 November 2007
Philip Kiptoo TunoiP.K. TunoiEOE.O. O'KubasuEGE.M. Githinji
5,626 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that a consent judgment tainted by illegality, undue influence or public policy concerns can be set aside, even though such judgments are normally binding.

What this practically means

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Executive summary

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This was an appeal to the Court of Appeal at Nairobi against a ruling of Ransley J delivered on 20th April 2005 in HCCC No. 1145 of 2004, dismissing an application by the appellant advocate to review and set aside a consent judgment of Kshs. 30 million entered against him in favour of Wedube Estates Limited. The underlying suit claimed over Kshs. 104 million arising from dishonoured cheques and alleged liabilities, with interest pleaded at 20% per month. The appellant contended the consent was procured by extortion, blackmail, undue influence and misrepresentation by the respondent's advocate, Mr Onalo, who at all material times held no practising certificate, and that the claim was tainted with illegality and contrary to public policy, including an alleged sum used to bribe City Council officials. The Court of Appeal framed the vexed question of the circumstances in which a consent judgment may be set aside, restating the settled rule from Hirani v Kassam, Brooke Bond Liebig v Mallya and Flora Wasike v Destimo Wamboko: a consent judgment binds the parties and may be set aside only on grounds such as fraud, collusion, misrepresentation, public policy, or grounds justifying rescission of a contract, with the burden on the party attacking it. The Court found the learned Judge erred in deciding the matter solely on duress, overlooking serious allegations calling for investigation, including Mr Onalo's conduct and lack of a practising certificate. Holding that the consent was not freely entered into and was tainted with illegality, undue influence and public policy objections, the Court allowed the appeal, set aside the Judge's order and the consent judgment with all consequential orders, and awarded the appellant the costs of the appeal.

Key legal issues

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01

Circumstances in which a consent judgment may be set aside

Holding

A consent judgment is binding and may only be set aside on grounds such as fraud, collusion, misrepresentation, public policy, or grounds that would justify rescission of a contract.

Reasoning

The Court traced the rule from Hirani v Kassam as approved in Brooke Bond Liebig v Mallya, and applied in Flora Wasike v Destimo Wamboko and later decisions of the Court. It synthesized these authorities into the settled principle that a consent judgment stands on the same footing as a contract and can be impeached only on grounds that would justify setting aside a contract, with the burden on the party attacking it.

p. 9
02

Whether the consent judgment here was freely entered into

Holding

The Court found the consent was not freely entered into but was tainted with illegality, undue influence and public policy objections, warranting its setting aside.

Reasoning

The Court considered the speed of the proceedings, the 20% monthly interest, the sudden appearance of Mr Onalo without a practising certificate, allegations of bribery of Council officials and strange transactions scribbled on loose paper. It held the learned Judge erred by deciding the matter solely on duress when the appellant had raised wider grounds requiring investigation, and that on those materials the Judge would have reached a different decision.

p. 11
03

Scope of the superior court's inquiry into an application to set aside a consent judgment

Holding

The court below erred in confining itself to duress when the applicant raised illegality, extortion, undue influence and public policy, all of which called for investigation.

Reasoning

Ransley J had rested his ruling on the absence of duress, evidenced by the appellant's letter of 26/11/2004. The Court of Appeal held this was not the accurate position: the affidavit evidence raised serious questions, including the bribery allegation and Mr Onalo's conduct and lack of a practising certificate, which could not be lightly dismissed and should have been investigated before dismissing the application.

p. 10

Legal principles established

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  • A consent judgment may be set aside only on grounds such as fraud, collusion, misrepresentation of facts, public policy, or such reasons as would enable a court to set aside or rescind a contract.
  • A consent judgment recorded by a court with the consent of counsel is binding on the parties and cannot be varied or discharged except in the recognized circumstances; the burden of proving those grounds lies on the party seeking to set it aside.
  • A consent tainted with illegality, undue influence or contrary to public policy cannot stand, and courts will not lend their process to achieve an illegal end.

Court orders

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  1. 1.Appeal allowed
  2. 2.Order of the learned Judge dated 20th April 2005 set aside
  3. 3.In its place, an order setting aside the consent judgment of the superior court together with all consequential orders
  4. 4.Costs of the appeal awarded to the appellant

Authorities

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Legislation

  • Companies ActCap. 486
  • Civil Procedure RulesOrder XXXV Rules 1(i)(a) and 1(2)
  • Civil Procedure RulesOrder XLIV rule 1
  • Civil Procedure RulesOrder 2
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 80

Cases cited (7)

  • Birkett v Acorn Business Machines Ltd
    [1999] 2 All ER (Comm) 429
  • Choitran v Nazari
    [1984] KLR 327
  • Brooke Bond Liebig (T) Ltd v Mallya
    [1975] E.A. 266
  • Hirani v Kassam
    [1952] 19 EACA 131
  • Flora Wasike v Destimo Wamboko
    (1982-88) 1 KAR 266
  • Kenya Commercial Bank Ltd v Benjoh Amalgamated Ltd & Another
    Civil Appeal No. 276 of 1997 (unreported)
  • Diamond Trust Bank of Kenya Ltd v Ply & Panels Ltd & Others
    Civil Appeal No. 243 of 2002 (unreported)
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 1145 of 2004
Jurisdiction invoked
First appellate jurisdiction over appeals from the High Court (judgment does not expressly state the provision; appeal from ruling of the High Court in a civil suit)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "SAMSON MUNIKAH practicing as MUNIKAH & COMPANY ADVOCATES v WEDUBE ESTATES LIMITED [2007] KECA 176 (KLR)", Case Analysis (2007). Civil Appeal 126 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/176/eng@2007-11-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.