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Court of AppealDismissedCivil Appeal No. 69 of 2017· [2019] KECA 145 (KLR)

Joseph C. Musyoki v Attorney General [2019] KECA 145 (KLR)

Court of Appeal of Kenya
22 November 2019
2,272 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed you cannot appeal or review a judgment you agreed to by consent, unless you prove fraud or collusion.

What this practically means

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Executive summary

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This second appeal arose from protracted litigation lasting some 15 years, concerning the retrenchment of a public service teacher, Joseph C. Musyoki. The appellant had succeeded before Sitati, J. on first appeal from the Chief Magistrate's Court, obtaining a decree of Kshs.1,312,960 for unpaid salary and house allowance, which was later varied on review by Ang'awa, J. The amounts were computed by the Deputy Registrar and reduced into a consent judgment recorded by Waweru, J. on 3rd July 2013 for Kshs.1,994,170.32 inclusive of interest. The appellant then sought a further review before Njuguna, J., asking that interest run from the date of filing suit (29th April 2004) rather than the date of judgment (26th October 2010), alleging an error apparent on the face of the record and absence of consent. Njuguna, J. dismissed the application, finding no error on the face of the record and that the orders were made by consent. The Court of Appeal (Sichale, J. Mohammed and ole Kantai, JJ.A.) in a single unanimous judgment dismissed the appeal with costs. It held that its jurisdiction on second appeal is limited by section 72 of the Civil Procedure Act, that no error apparent on the face of the record existed, that the application for review was brought with unreasonable delay, that consent judgments can only be set aside for fraud or collusion, and that no appeal lies against a consent decree under section 67(2) of the Civil Procedure Act. The decision below was affirmed.

Key legal issues

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01

Whether there was an error apparent on the face of the record justifying review of the Deputy Registrar's computation order

Holding

The Court found no error on the face of the record or any error at all in the Deputy Registrar's order of 17th December 2012, and found the application for review was also brought with unreasonable delay, affirming the High Court's finding.

Reasoning

The Deputy Registrar's order had been converted into a consent judgment recorded by Waweru, J. on 3rd July 2013 after calculations agreed by the parties under the Deputy Registrar's supervision. The consent order of 17th July 2013 was binding, the appellant was ably represented throughout, and there was no evidence of fraud. The review application dated 26th October 2015 sought to review an order made in December 2012, an unreasonable delay that independently doomed it.

p. 3
02

Whether a consent judgment recorded by the court is binding and can only be set aside for fraud or collusion

Holding

The Court affirmed that a consent judgment has contractual effect and can only be set aside for fraud or collusion or any reason which would enable a court to set aside an agreement, holding that the consent recorded before Waweru, J. bound the parties.

Reasoning

The Court endorsed the High Court's reliance on Kenya Commercial Bank Limited v Specialised Engineering Company Limited and Brooke Bond Liebig Limited v Mallya. The appellant was represented by counsel throughout, the lawyers had considered the matters in issue and agreed, and there was no iota of evidence of fraud by anybody. Consequently, the consent orders stood and could not be disturbed on review or appeal.

p. 3
03

Whether an appeal lies against a decree passed by consent

Holding

Section 67(2) of the Civil Procedure Act does not allow an appeal where a decree is passed with the consent of the parties, further depriving the Court of jurisdiction to entertain the appeal.

Reasoning

Because the orders challenged were made by consent of the parties after their lawyers negotiated and agreed the computations, section 67(2) barred an appeal against them. Combined with the limited grounds under section 72 for second appeals, the Court held the appeal did not fit within the jurisdiction donated to it.

p. 3

Legal principles established

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  • In a second appeal under section 72 of the Civil Procedure Act, the Court of Appeal's jurisdiction is limited to matters of law, including that the decision is contrary to law, failure to determine a material issue of law, or substantial procedural error possibly affecting the merits.
  • A consent judgment or consent order may only be set aside for fraud, collusion, or any reason which would enable a court to set aside an agreement, and no appeal lies against a decree passed with the consent of the parties under section 67(2) of the Civil Procedure Act.
  • An application for review under Order 45 of the Civil Procedure Rules must be made without unreasonable delay and must establish an error apparent on the face of the record, new and important matter, or other sufficient reason.

Court orders

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  1. 1.Appeal dismissed
  2. 2.Costs of the appeal to the respondent

Authorities

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Legislation

  • Civil Procedure ActSection 72
  • Civil Procedure ActSection 67(2)
  • Civil Procedure RulesOrder 45

Cases cited (3)

  • National Bank of Kenya v Ndungu Njau
    [1997] eKLR
  • Kenya Commercial Bank Limited v Specialised Engineering Company Limited
    [1982] KLR 485
  • Brooke Bond Liebig Limited v Mallya
    [1975] EA 266
On appeal from
High Court of Kenya at Nairobi
HC. CA No. 273 of 2006
Jurisdiction invoked
Section 72 of the Civil Procedure Act (second appeal from a decision on appeal from a subordinate court)

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, "Joseph C. Musyoki v Attorney General [2019] KECA 145 (KLR)", Case Analysis (2019). Civil Appeal No. 69 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/145/eng@2019-11-22

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