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Court of AppealPartially AllowedCivil Appeal 209 of 2005

Nation Media Group Limited v Busia Teachers Co-Operative Credit And Savings Society Limited & another [2010] KECA 92 (KLR)

Court of Appeal of Kenya
5 November 2010
ROR. S. C. OmoloPWP. N. WakiAVAlnashir Visram
2,027 words in judgment
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The bottom line

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Kenya's Court of Appeal threw out a Kshs 2.4 million defamation award because the trial judge ignored a consent order the parties had agreed to.

What this practically means

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Executive summary

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The respondents sued the appellant for defamation over a Daily Nation article of 19th February 2001 entitled “Society Issues Bad Cheques”. After a first trial before Ang'awa, J resulted in an award of Kshs 1 million, the parties recorded a consent order under which the judgment was set aside and the suit was to be heard de novo. At the retrial before Sergon, J, the respondents successfully applied to rely on the entire evidence taken before Ang'awa, J; the appellant objected, invoking the consent order, but was overruled. It was granted leave to appeal that ruling but never did. The suit proceeded, the appellant called no witnesses, and judgment was entered awarding general and aggravated damages of Kshs 2.4 million. The appellant appealed on eight grounds, principally that the judge had no jurisdiction to proceed in breach of the consent order. The Court of Appeal agreed, holding that a consent order operates as a contract between the parties and can be set aside only by consent or on contractual grounds. The judge's departure from the de novo direction was without jurisdiction and caused serious prejudice, since the appellant could not cross-examine the respondents' witnesses after the pleadings had been amended. The court further held that want of jurisdiction could not be cured by the appellant's failure to appeal the interlocutory ruling, since proceedings conducted without jurisdiction are null and void. The appeal was allowed, the judgment of 10th June 2004 was set aside, the suit was ordered to be heard de novo before a judge other than Ang'awa and Sergon, JJ, and each party was to bear its own costs. The remaining grounds of appeal were not addressed because a retrial was inevitable.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the superior court had jurisdiction to permit the respondents to rely on the proceedings taken before Ang'awa, J, contrary to the consent order requiring the suit to be heard de novo
  2. 2.Whether the appellant was estopped from challenging that decision by reason of not having appealed against it after being granted leave

Key legal issues

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01

Jurisdiction to depart from a subsisting consent order

Holding

The superior court acted without jurisdiction in allowing the respondents to rely on proceedings taken before Ang'awa, J when the consent order required the suit to be heard de novo; the order had not been set aside and could not be violated at will.

Reasoning

The consent order of 4th May 2002 expressly required a de novo hearing. It was extracted and formed part of the record. A consent order is contractual in nature and can be varied only by consent or on grounds justifying setting aside a contract. Sergon, J altered the course of trial, depriving the appellant of the opportunity to cross-examine respondents' witnesses after the pleadings had been amended, causing serious prejudice. The decision was therefore without jurisdiction.

p. 3
02

Effect of failure to appeal against the interlocutory decision

Holding

The appellant's failure to appeal against the decision allowing reliance on previous proceedings did not estop it from raising the jurisdictional defect, because jurisdiction is fundamental and proceedings conducted without it are a nullity.

Reasoning

The respondents argued that the appellant, having been granted leave to appeal against Sergon, J's ruling but not having done so, was estopped. The court held that the question of jurisdiction is central and fundamental; a court without jurisdiction must stop, and anything done thereafter is null and void. A nullity cannot be cured by a party's procedural default, so the point could be raised on the substantive appeal.

p. 3

Legal principles established

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  • A consent order binds the parties like a contract and may only be set aside by the parties' consent or on grounds available for setting aside a contract; a judge cannot depart from it at will.
  • Where a court lacks jurisdiction, everything it does thereafter is null and void; jurisdiction cannot be defeated by estoppel or a party's failure to appeal an interlocutory decision.
  • An order hearing a suit de novo means the suit must be heard afresh, as if the original hearing had not taken place.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The judgment and decree of the superior court made on 10th June 2004 are set aside
  3. 3.The suit in the superior court shall be heard de novo in accordance with the terms of the consent order dated 4th May 2002
  4. 4.The suit be heard by any judge of the superior court other than Ang'awa and Sergon, JJ
  5. 5.Each party shall bear their own costs so far, both in the appeal and in the superior court

The bench

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One judgment of the whole court — no separate or dissenting opinions.

RO
majority
PW
majority
AV
majority
On appeal from
High Court of Kenya at Busia
H.C.C.C. No. 15 of 2001
Jurisdiction invoked
First appellate jurisdiction over appeals from the High Court (Court of Appeal Act; Constitution providing for appeals from the High Court to the Court of Appeal as then constituted)

Relief refused

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Determination of the other grounds of appeal on the merits of the defamation claim

A retrial was inevitable, so commenting on the remaining grounds would be prejudicial

p. 3

Costs

Each party shall bear their own costs so far, both here and in the superior court.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, and for reasons cited, we would allow this appeal, and set aside the judgment and decree of the superior court made on 10th June, 2004, and order that the suit in the superior court be heard de novo, in accordance with the terms of the consent order dated 4th May, 2002.
p. 3Final orders - appeal allowed and retrial ordered
We further direct that the suit be heard by any judge of the superior court other than Ang’awa and Sergon, JJ. Each party shall bear their own costs so far, both here and in the superior court.
p. 3Final orders - retrial before a different judge and costs
It must lay down its tools, and anything it does after, is of no consequence, and null and void for all intents and purposes.
p. 3Consequences of want of jurisdiction
That order, which was made on 4th May, 2002 had not been set aside, and it simply could not have been violated willy nilly.
Sanctity of consent orders

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Nation Media Group Limited v Busia Teachers Co-Operative Credit And Savings Society Limited & another [2010] KECA 92 (KLR)", Case Analysis (2010). Civil Appeal 209 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/92/eng@2010-11-05

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