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Court of AppealDismissedCivil Appeal No. 205 of 2014· [2017] KECA 506 (KLR)

S M N v Z M S & 3 others [2017] KECA 506 (KLR)

Court of Appeal of Kenya
9 June 2017
3,788 words in judgment
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The bottom line

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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

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Executive summary

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The Court of Appeal (Waki, Nambuye and Kiage, JJ.A) dismissed an appeal against the High Court's refusal to review, vacate or set aside a consent order recorded before Lenaola, J on 11 July 2013, compromising Constitutional Petition No. 529 of 2012. The petition, brought by Z M S and M W S, had permanently barred the appellant, S M N, from pursuing a private criminal prosecution before the Nakuru Chief Magistrate's Court founded on his claim that Z was his son abducted 34 years earlier, and from contacting the petitioners over that allegation. S alleged the consent was fraudulently entered into by his advocate, Mr. Gakinya, without instructions, and reported the advocate to the Law Society. The Court reaffirmed the settled law that a consent judgment or order has contractual effect and may be set aside only on grounds justifying rescission of a contract - fraud, collusion, agreement contrary to public policy, insufficient material facts, misapprehension, or other sufficient reason. It held that a duly instructed advocate has implied general authority to compromise an action, and any limitation of that authority is ineffective unless communicated to the other side. Fraud against an advocate must be specifically pleaded and strictly proved to a standard slightly above balance of probability, on cogent and truthful evidence; the appellant's hearsay claim fell far short. The trial judge's findings on credibility and discretion attracted no appellate interference under the Mbogo v Shah principle. The appeal was dismissed with no orders as to costs.

Key legal issues

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01

Standard for setting aside a consent order

Holding

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.

Reasoning

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.

p. 5
02

Authority of an advocate to enter a consent

Holding

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.

Reasoning

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.

p. 6
03

Burden of proving fraud against an advocate

Holding

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.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The appeal is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Court of Appeal RulesRule 29

Cases cited (14)

  • Hirani vs Kassam
    (1952) 19 EACA 131
  • Kasmir Wesonga Ongoma & Another vs Ismael Etoicho Wanga
    Civil Appeal No. 25 of 1986
  • Republic vs District Land Registrar Nandi & Another Ex-parte Kiprono Tegerei & Another
    [2005] eKLR
  • M & E Consulting Engineers Limited vs Lake Basin Development Authority & Another
    [2015] eKLR
  • Kenya Commercial Bank Ltd vs Specialised Engineering Company Ltd
    [1982] KLR 485
  • Gateway Insurance Company Ltd vs Aries auto Sprays
    [2011] eKLR
  • Lenina Kemigisha Mbabazi Star Fish Limited vs Jing Jeng International Trading Ltd
    [HCT-00-MA-344-2012]
  • Mbogo & Anor vs Shah
    [1968] EA 93
  • Flora N. Wasike vs Destimo Wamboko
    [1988] eKLR
  • J M Mwakio vs Kenya Commercial Bank Ltd
    Civil Appeals 28 of 1982 and 69 of 1983
  • Purcell vs F C Trigell Ltd
    [1970] 2 All ER 671
  • Brooke Bond Liebig Ltd vs Mallya
    [1975] EA 266
  • Kenya Commercial Bank Limited vs Benjoh Amalgamated Limited & Another
    [1998] eKLR
  • Abdul Rehman vs Fredrich Delfer & Anor
    C. A. No. 112 of 1992
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

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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, "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.