Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal No. 7 of 2014· [2017] KECA 625 (KLR)

Yasin Mohamed Jamal v Ali Daud Mohamed [2017] KECA 625 (KLR)

Court of Appeal
31 March 2017
1,126 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

The Court of Appeal confirmed that consent judgments are binding contracts, and outsiders cannot overturn them by merely alleging fraud.

What this practically means

#

Executive summary

#
The appellant, Yasin Mohamed Jamal, who was not a party to Nairobi HCCC No. 152 of 2004, applied to the High Court for review of a consent judgment recorded on 14th September 2009 and re-recorded and signed by the parties before Waweru J on 17th September 2009, compromising the suit and transferring L.R. No. 36/11/159 Eastleigh, Nairobi to the respondent, Ali Daud Mohamed. The appellant alleged the consent was procured by fraud, undue influence and misrepresentation and was contrary to law and public policy. Waweru J dismissed the application by ruling delivered on 15th November 2013, and the appellant appealed on six grounds, including that the judge erred in holding that parties can cure fraud by consent and in failing to appreciate that fraud vitiates everything. The Court of Appeal (G.B.M. Kariuki, J. Mohammed and S. ole Kantai, JJ.A) applied the settled law on consent judgments, citing Setton on Judgment and Orders and its own decision in Board of Trustees NSSF v Michael Mwalo, which quoted Kenya Commercial Bank v Specialized Engineering. The court held that a consent order binds all parties and cannot be set aside unless obtained by fraud, collusion, an agreement contrary to public policy, or without sufficient material facts; that a duly instructed advocate has implied authority to compromise an action; and that a consent judgment becomes a contract binding on the parties to it. Finding that the parties entered the consent with full knowledge and that none of them had sought to set it aside, the court held the appellant, as a stranger to the contract, could not disturb it. The appeal was dismissed with costs on 31st March 2017, affirming the ruling of the High Court.

Key legal issues

#
01

Effect and setting aside of consent judgments

Holding

A consent judgment is prima facie binding and cannot be varied or discharged unless obtained by fraud or collusion, or by an agreement contrary to the policy of the court, or where the consent was given without sufficient material facts.

Reasoning

The court adopted the settled common law position from Setton on Judgment and Orders and the Court of Appeal's own authority in Board of Trustees NSSF v Michael Mwalo quoting Kenya Commercial Bank v Specialized Engineering. It found the parties appeared personally before Waweru J three days after the consent was filed and signed it, showing they entered it with full knowledge. No party to the consent had moved to set it aside.

p. 2
02

Locus of a stranger to a consent judgment to attack it

Holding

A stranger to a consent judgment, such as the appellant who was not a party to the suit, cannot disturb the consent on allegations of fraud, undue influence or misrepresentation.

Reasoning

The consent judgment crystallised into a contract binding the parties to it, resulting in transfer of the suit property to the respondent. The appellant was neither a party to the suit nor to the consent. The court found the parties and beneficiaries had personally endorsed the consent before the judge without complaint of inducement, and noted the absence of any application by the parties themselves to set aside the consent.

p. 2
03

Alleged judicial misdirection that parties can cure fraud by consent

Holding

The court found no merit in the appellant's grounds; the learned judge had properly considered the material and there was no basis to find the consent vitiated.

Reasoning

The appellant's six grounds - including that the judge misdirected himself in holding parties can cure fraud by consent, that fraud vitiates everything, and that the judge failed to consider submissions - did not displace the settled law on consent judgments. The judge had considered the material placed before him and rightly questioned why no party to the consent sought to set it aside.

p. 2

Legal principles established

#
  • A consent order entered into by counsel is binding on all parties to the proceedings and cannot be set aside or varied unless it is proved that it was obtained by fraud or collusion, or by an agreement contrary to the policy of the court, or where the consent was given without sufficient material facts or in misapprehension of such facts
  • A duly instructed advocate has an implied general authority to compromise and settle the action, and a client cannot rely on any limitation of that implied authority unless it was brought to the notice of the other side
  • A consent judgment operates as a contract binding only on the parties to it; a stranger to the consent cannot disturb it merely by alleging fraud, undue influence or misrepresentation

Court orders

#
  1. 1.Appeal dismissed with costs

Authorities

#

Cases cited (2)

  • Board of Trustees National Social Security Fund v Michael Mwalo
    [2015] eKLR
  • Kenya Commercial Bank Limited v Specialized Engineering Company Limited
    [1982] KLR 485
On appeal from
High Court of Kenya at Nairobi
HCCC No. 152 of 2004 (Ruling and Order of 15th November 2013)
Jurisdiction invoked
First appeal to the Court of Appeal against the ruling of the High Court (statutory appellate jurisdiction of the Court of Appeal)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Yasin Mohamed Jamal v Ali Daud Mohamed [2017] KECA 625 (KLR)", Case Analysis (2017). Civil Appeal No. 7 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/625/eng@2017-03-31

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