Zipporah N. Gichia v Simon Chege [2019] KECA 253 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed you cannot appeal a consent judgment; your only route to undo one is review in the High Court.
What this practically means
#Executive summary
#Key legal issues
#Validity of the consent judgment
The consent judgment was valid and binding; fraud, duress, coercion or collusion must be proved as facts to set aside a consent, and the concurrent findings of the two courts below that none was established are binding on this Court.
Fraud, collusion and public policy are matters of fact requiring proof and adequate ventilation. Both the trial court and the High Court made concurrent findings that none of the threshold requirements for setting aside the consent was established. As a second appeal, the Court is bound by concurrent findings of fact unless shown not to be based on evidence, and declined to interfere.
Whether the consent judgment compromised the pending appeal
Under section 67(2) of the Civil Procedure Act, no appeal lies from a consent decree; entry of the consent compromised the appeal in HCCA No. 237 of 2009.
The consent judgment dated 29th December 2014 was filed and adopted as an order of the court. Section 67(2) is unequivocal that no appeal lies from a decree passed with the consent of parties; consequently the appeal was effectively compromised. The Court endorsed Wasiki v Wamboko, holding that the proper remedy is review in the High Court, not appeal.
Legal principles established
#- On a second appeal, the Court of Appeal is confined to matters of law and is bound by concurrent findings of fact of the lower courts unless those findings are not based on evidence.
- No appeal lies from a decree passed by the court with the consent of parties; the proper course against a consent judgment is to set it aside by review in the High Court.
Court orders
#- 1.The appeal is dismissed with costs to the respondent
- On appeal from
- High Court of Kenya at Nairobi
- HCCA No. 237 of 2009 and HCCA No. 553 of 2015
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court under the Civil Procedure Act (second appeal limited to matters of law)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Zipporah N. Gichia v Simon Chege [2019] KECA 253 (KLR)", Case Analysis (2019). Civil Appeal No. 127 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/253/eng@2019-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.