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Court of AppealDismissedCivil Appeal No. 127 of 2017· [2019] KECA 253 (KLR)

Zipporah N. Gichia v Simon Chege [2019] KECA 253 (KLR)

Court of Appeal
25 October 2019
2,132 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a second appeal to the Court of Appeal at Nairobi (Musinga, Gatembu Kairu and Murgor, JJA) arising from the High Court (Njuguna, J.) judgment of 9th March 2017 in consolidated appeals HCCA No. 237 of 2009 and HCCA No. 553 of 2015. The underlying dispute concerned damages for injuries Zipporah suffered in a road accident in 2002, for which the trial magistrate awarded general and special damages. While her first appeal to the High Court was pending, the parties entered a consent judgment on 29th December 2014 under which Simon would pay Kshs. 1,475,000 in final settlement of the decree. Zipporah later applied at the trial court for inclusion of additional costs and expenses, alleging the consent was procured under duress and taking advantage of her poor health; that application was dismissed. The High Court consolidated her two appeals and upheld the consent, finding no basis to set it aside and that her claims were res judicata as the consent had settled the suit. The Court of Appeal, confining itself to matters of law on a second appeal, found it bound by the concurrent findings of the two lower courts that no fraud, duress, coercion or collusion had been proved. It further held that under section 67(2) of the Civil Procedure Act, no appeal lies from a consent decree, and the entry of the consent compromised the pending appeal. The proper remedy against a consent judgment is review in the High Court. The appeal was accordingly dismissed with costs to the respondent.

Key legal issues

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01

Validity of the consent judgment

Holding

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.

Reasoning

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.

p. 3
02

Whether the consent judgment compromised the pending appeal

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The appeal is dismissed with costs to the respondent

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)Section 72
  • Civil Procedure Act (Cap 21)Section 67(2)

Cases cited (5)

  • Naomi Kemuntos Total (K) Limited and Kisii Total Service Station
    Kisii Civil Appeal No. 211 of 2008 (UR)
  • Kitivo - v- Kitivo
    (2008) KLR 119
  • Kenya Breweries Limited vs Godfrey Odoyo
    [2010] eKLR
  • Njoroge vs Republic
    [1982] KLR 388
  • Flora N. Wasike vs Destimo Wamboko
    [1988] eKLR
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

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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, "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.