Yasin Mohamed Jamal v Ali Daud Mohamed [2017] KECA 625 (KLR)
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
#Key legal issues
#Effect and setting aside of consent judgments
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.
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.
Locus of a stranger to a consent judgment to attack it
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.
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.
Alleged judicial misdirection that parties can cure fraud by consent
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.
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.
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.Appeal dismissed with costs
- 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.