Mwihangiri Farmers Limited v Ecumenical Development Co-operative Society (E.D.C.S.) [2016] KECA 560 (KLR)
The bottom line
#The Court of Appeal confirmed that once parties sign a consent decree in a Kenyan case, it binds them like a contract and is nearly impossible to undo.
What this practically means
#Executive summary
#Key legal issues
#Whether a consent decree can be set aside on the ground of mistake or error apparent on the face of the record absent fraud or other vitiating factors
No. A consent decree has contractual effect and can only be set aside on grounds that would justify setting aside a contract, such as fraud, collusion, duress, undue influence or misapprehension of material facts. None was alleged or proved.
The Court adopted the settled position in Flora Wasike v Destino, Brooke Bond Liebig (J) Ltd v Mallya and Kenya Commercial Bank Ltd v Specialized Engineering that consent orders bind parties as contracts. The appellant alleged no duress, undue influence, inequality of bargaining power or coercion, and no error apparent on the record was demonstrated. Review under Order 45 also failed because no new and important matter or sufficient reason was shown.
Whether the High Court erred in dismissing the appellant's notice of motion to set aside the consent decree
No. The High Court's dismissal of the motion was correct and without error, and the Court of Appeal upheld it.
The Court found that the issue before the High Court was whether sufficient grounds existed to set aside order 1 of the consent decree, which permitted the respondent to exercise its statutory power of sale over Plot No. Nyandarua/Karati/2352. Since the appellant failed to meet the stringent test for disturbing consent orders or to satisfy Order 45, the High Court's exercise of discretion could not be faulted, and the appeal failed in its entirety.
Legal principles established
#- A consent judgment, order or decree has contractual effect and can only be set aside on grounds which would justify setting a contract aside, or if certain conditions remain to be fulfilled which are not carried out
- A consent order entered into by counsel binds all parties and cannot be set aside or varied unless obtained by fraud, collusion, agreement contrary to the policy of the court, or where the consent was given without sufficient material facts or in misapprehension of the facts
- For a review under Order 45 the applicant must show on a balance of probabilities discovery of new and important matter, or a mistake or error apparent on the face of the record, or other sufficient reason; mere dissatisfaction with a consent decree does not suffice
Court orders
#- 1.Appeal dismissed with costs to the respondent
- 2.Ruling of the High Court (Koome, J) dismissing the appellant's notice of motion dated 15th January 2010 upheld
- On appeal from
- High Court of Kenya, Nairobi
- H.C.C.C. No. 2026 of 2000
- Jurisdiction invoked
- First appeal to the Court of Appeal against a ruling of the High Court (Civil Procedure Act regime; no specific constitutional provision stated)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwihangiri Farmers Limited v Ecumenical Development Co-operative Society (E.D.C.S.) [2016] KECA 560 (KLR)", Case Analysis (2016). Civil Appeal No. 24 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/560/eng@2016-05-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.