Kenya Revenue Authority v Mohamed Saleh & Company Limited [2019] KECA 121 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that settlement agreements your lawyer signs bind you, and appeals cannot raise new arguments they never filed.
What this practically means
#Executive summary
#Key legal issues
#Validity and binding effect of the consent judgment for USD 104,160
The consent judgment was binding; the appellant neither applied to set it aside nor proved fraud, collusion, or misapprehension of material facts, and counsel had implied authority to compromise
The Court applied the settled principles in Kenya Commercial Bank v Specialized Engineering and Brooke Bond Liebig v Mallya. No formal application to set aside the consent was made; the issue was raised only in submissions. Counsel acting bona fide has general authority to compromise absent an express negative direction communicated to the other side, none of which was shown.
Whether the Kshs.5,523,731 was proved as storage charges
The respondent proved payment of the sum as storage charges; the appellant's witness's assertion that it was handling charges was hearsay
The respondent's witness tendered evidence of storage charges for 193 days supported by a debit note, while the appellant's witness admitted he did not handle the matter in 2003 and relied on information from undisclosed persons given in 2009. The trial court's finding that the proved sum was storage charges was sound and unimpeached.
Whether a ground not in the memorandum of appeal (interest rate) could be argued
No; under rule 104(a) such a ground must be rejected summarily absent leave
The ground challenging the 14% interest rate did not appear in the memorandum of appeal and no leave was sought. Rule 104(a) of the Court of Appeal Rules prohibits arguing grounds outside the memorandum without leave. The Court noted court rates had risen from 12% in 2004 to 14% by the date of judgment.
Legal principles established
#- A consent order entered into by duly instructed counsel is binding and cannot be set aside or varied unless obtained by fraud or collusion, by agreement contrary to the policy of the court, without sufficient material facts, or in misapprehension of facts
- A duly instructed advocate has implied general authority to compromise and settle the action, and a client cannot rely on an unstated limitation of that authority unless it was brought to the notice of the other side
- A party may not, without leave of the Court, argue a ground of appeal not specified in the memorandum of appeal or notice of cross-appeal
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal awarded to the respondent
- On appeal from
- High Court of Kenya at Mombasa
- H.C. Civil Suit No. 221 of 2004
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules / Article 164 of the Constitution (as an appeal from the High Court)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Shah & 3 others v I&M Bank (Civil Appeal 133 of 2019) [2025] KECA 298 (KLR)[2025] KECA 298 (KLR)21 Feb 2025
- African Gas and Oil Co Limited & 4 others v National Land Commission & another (Environment & Land Petition 51, 52, 53, 54 & 55 of 2019 (Consolidated)) [2022] KEELC 2746 (KLR)[2022] KEELC 2746 (KLR)4 Jul 2022
Cite this brief
#Cite this brief
Caselaw, "Kenya Revenue Authority v Mohamed Saleh & Company Limited [2019] KECA 121 (KLR)", Case Analysis (2019). Civil Appeal No. 21 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/121/eng@2019-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.