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Court of AppealDismissedCivil Appeal 167 of 2019· [2022] KECA 771 (KLR)

Solacher v Romantic Hotels Limited & another

Court of Appeal
10 June 2022
SKS. Gatembu KairuPNP. NyamweyaJLJ. Lesiit
5,272 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 that once you consent to a court order, you cannot undo it years later without proving fraud or misrepresentation.

What this practically means

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Executive summary

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The Court of Appeal at Mombasa (Kairu, Nyamweya and Lesiit, JJA) dismissed an appeal against a High Court ruling of 27th March 2019 (Chepkwony, J.) which had refused the appellant's application to review an order of 30th August 2012 (Meoli, J.) consolidating three suits: HCCC No. 111 of 2008 (threatened eviction/lease), HCCC No. 74 of 2010 (loan recovery) and Malindi HCCC No. 20 of 2011 (nuisance). The appellant argued the consolidation was an error on the face of the record because the land claims belonged to the Environment and Land Court, that the consent was obtained by misrepresentation, and that the High Court erred on delay. The Court of Appeal held that the consolidation order was a consent order: the respondents' notice of motion clearly sought consolidation of all three suits and the appellant's counsel's letter of 24th August 2012 expressly consented to the prayers sought; the appellant filed no further affidavit to controvert it, so estoppel applied, and no evidence of fraud, misrepresentation, illegality or lack of authority was tendered. On the jurisdictional argument, the Court applied the transitional provisions of Section 30 of the Environment and Land Court Act, 2011 and the Chief Justice's 2014 Practice Directions, but held that the alleged jurisdictional error required a long drawn process of reasoning and could have been a ground of appeal, not a ground for review under Order 45 Rule 1. The six-year delay was inordinate and unexplained. The Court found no basis to interfere with the judge's exercise of discretion and dismissed the appeal in its entirety. No costs order is recorded.

Key legal issues

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01

Whether the consolidation order of 30th August 2012 was a consent order and whether it was obtained by misrepresentation

Holding

The order was a consent order made pursuant to the respondents' clear application and the appellant's counsel's unambiguous consent letter; no fraud, misrepresentation or illegality was proved

Reasoning

The respondents' notice of motion clearly sought consolidation of all three suits, and the appellant's counsel's letter of 24th August 2012 expressly consented to the prayers sought. The appellant filed no further affidavit to controvert the letter, which was therefore admitted. Having participated in the consolidated suits and closed his case, the appellant could not seek de-consolidation without tendering evidence of fraud, misrepresentation, illegality or lack of authority.

p. 5
02

Whether the alleged lack of High Court jurisdiction over land matters constituted an error apparent on the face of the record warranting review

Holding

No; the alleged jurisdictional error required a long drawn process of reasoning and could have been a ground of appeal, not a ground for review

Reasoning

Applying Nyamogo & Nyamogo v Kogo, an error apparent on the face of the record must stare one in the face with no reasonable two opinions. The jurisdictional argument depended on the ELC Act transitional provisions and the Chief Justice's 2014 Practice Directions, requiring extensive reasoning. Such a point may be a good ground of appeal but not a ground for review, so the High Court was right not to determine jurisdiction in the review application.

p. 9
03

Whether the six-year delay in bringing the review application was properly found to be inordinate and unexplained

Holding

Yes; the application for review was filed six years after the order was made without explanation, failing the requirement of applying without unreasonable delay under Order 45 Rule 1

Reasoning

Order 45 Rule 1 requires that an application for review be made without unreasonable delay. The High Court found the six-year delay unexplained and inordinate, and the Court of Appeal found that the judge correctly apprehended the facts and took into account all she should have considered, so there was no basis to interfere with that exercise of discretion.

p. 2

Legal principles established

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  • A consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside
  • A point which may be a good ground of appeal may not be a good ground for an application for review
  • An appellate court will not interfere with a discretionary decision unless the judge misdirected himself, misapprehended the facts, took into account irrelevant considerations, failed to take into account relevant considerations, or the decision is plainly wrong
  • A party who receives a supporting affidavit together with a Notice of Motion and raises no objection to its content is estopped from later challenging it

Court orders

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  1. 1.Appeal dismissed in its entirety

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 165 and 162(2)
  • Civil Procedure ActSection 80
  • Civil Procedure Rules, 2010Order 45 Rule 1
  • Environment and Land Court Act, 2011Section 30
  • Law of Succession ActCap. 160

Cases cited (15)

  • Mulemi v Angweye & another
    (Civil Appeal 170 of 2016) [2021] KECA 214

    Principles guiding interference with the exercise of discretion by Superior Courts

  • Mbogo & Another vs. Shah
    [1968] E.A 93

    Appellate court will not interfere with exercise of discretion unless decision is clearly wrong

  • United India Insurance Co. Ltd & 2 Others vs East African Underwriters (Kenya) Ltd
    [1985] eKLR

    Madan JA's restatement of grounds for interfering with discretionary decisions

  • Flora Wasike v Destimo Wamboka
    [1988] 1 KAR 625

    Consent judgment or order has contractual effect and can only be set aside on grounds justifying setting aside a contract

  • Purcell vs F C Trigell Ltd
    [1970] 2 All ER 671

    Consent order set aside only on grounds justifying setting aside a contract entered with knowledge of material matters

  • Rep. V. Karisa Chengo
    [2017] eKLR

    Cited by appellant for the proposition the High Court has no jurisdiction to entertain land matters

  • Attorney General & 2 Others v. Okiya Omtata Okoiti & 14 Others
    (2020) eKLR

    Cited by appellant: jurisdiction cannot be derived from nor conferred by consent of parties

  • Kenya Ports Authority v Modern Holdings (E.A) Limited
    2017 eKLR

    Cited by appellant: jurisdiction can be raised at any stage, by any party, in any manner and even by the court

  • Stumberg & another v Potgeiter
    1970 EA 323

    Cited by respondents: expeditious disposal of cases militates against setting aside a consent order

  • Erij Kishore v Bir Singh & Others
    [2007] 2 Supreme Court Cases 551

    Cited by respondents on expeditious disposal militating against setting aside consent orders

  • Chemweli Jenges Mangale & 3 others v Hamisi Mohaned Mwawasaa & 15 others
    [2016] eKLR

    Cited by respondents: cases are consolidated for expedience, to save on costs and judicial time

  • Law Society of Kenya v Centre for Human Rights & Democracy & 12 others
    [2014] eKLR

    Cited by respondents: essence of consolidation is to facilitate efficient and expeditious disposal of disputes

  • Muyodi v Industrial and Commercial Development Corporation & Another
    [2006] 1 EA 243

    Definition of an error apparent on the face of the record

  • Nyamogo & Nyamogo v Kogo
    [2001] EA 174

    Error apparent on the face of the record cannot be defined precisely; distinction between erroneous decision and error apparent on the record

  • Abasi Belinda v Frederick Kangwamu and another
    [1963] E.A. 557

    A good ground of appeal may not be a good ground for review; erroneous view of evidence or law is not a ground for review

On appeal from
High Court at Mombasa
HCC Case No. 74 of 2010 (Consolidated with HCC Case No. 20 of 2011 and HCC Case No. 111 of 2008)
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over a ruling of the High Court; review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Solacher v Romantic Hotels Limited & another", Case Analysis (2022). Civil Appeal 167 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/771/eng@2022-06-10

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