S M N v Z M S & 3 others [2017] KECA 506 (KLR)
The bottom line
#The Court of Appeal confirmed that settlement agreements signed in court bind you firmly, unless you can prove fraud with strong evidence.
What this practically means
#Executive summary
#Key legal issues
#Standard for setting aside a consent order
A consent order can only be set aside on grounds that would justify setting aside a contract, including fraud, collusion, agreement contrary to the policy of the court, insufficient material facts, misapprehension, or other sufficient reason.
The court adopted the settled principle, drawn from Flora N. Wasike v Destimo Wamboko, KCB v Specialised Engineering, Hirani v Kassam and Purcell v F C Trigell, that consent orders have contractual effect. The grounds for impeachment asserted here were fraud and collusion, which carry a heavy evidential burden on the party alleging them.
Authority of an advocate to enter a consent
A duly instructed advocate has ostensible/implied general authority to compromise the client's case; absence from court when the consent is recorded does not invalidate it where instructions existed.
Mr. Gakinya had attended court on four previous occasions confirming his instructions; his absence was explained. Instructions being oral, the court found the advocate had ostensible authority and bona fides, and that no limitation of authority was brought to the other side's notice. The trial court's preference for the advocate's credible account could not be faulted.
Burden of proving fraud against an advocate
Allegations of fraud or collusion against an advocate are of utmost gravity and require cogent and truthful evidence; a mere statement of fraud cannot suffice.
The appellant alleged the consent was fraudulently entered into without instructions. The court held such imputations border on crime, so the burden is slightly higher than balance of probability though perhaps not beyond reasonable doubt. The appellant's evidence was limited to hearsay informants and resemblance; no aspect of fraud was cited.
Legal principles established
#- A consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside
- A duly instructed advocate has implied general authority to compromise and settle an action, and the client cannot rely on any limitation of that authority unless it was brought to the notice of the other side
- Allegations of fraud against an advocate must be specifically pleaded and strictly proved to a standard slightly higher than balance of probability, requiring cogent and truthful evidence
- An appellate court will not ordinarily interfere with the exercise of discretion by a trial judge unless the judge misdirected himself or was clearly wrong, occasioning an injustice
Court orders
#- 1.The appeal is dismissed
- 2.No orders as to costs
- On appeal from
- High Court of Kenya at Nairobi
- Petition No. 529 of 2012
- Jurisdiction invoked
- First appellate jurisdiction under the Court of Appeal Rules (Rule 29 appraisal of evidence); appeal against refusal to review, vacate or set aside a consent order
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "S M N v Z M S & 3 others [2017] KECA 506 (KLR)", Case Analysis (2017). Civil Appeal No. 205 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/506/eng@2017-06-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.