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Court of AppealDismissedCivil Application 205 (UR 152/2015) of 2012· [2023] KECA 1664 (KLR)

Trust Bank Limited v Patel & 3 others

Court of Appeal
8 December 2023
2,489 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 refused to release Kshs.17 million in held costs to Trust Bank, confirming consent orders bind parties unless fraud or non-disclosure is proven.

What this practically means

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Executive summary

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Trust Bank Limited, now in liquidation under the Kenya Deposit Insurance Corporation, applied under sections 3A and 3B of the Appellate Jurisdiction Act and rules 1(2), 31, 47 and 53(2)(d) of the Court of Appeal Rules to set aside a consent order dated 24th October 2012. Under that consent, adopted to secure a stay of execution of costs of Kshs.17,002,770 awarded to Vinod Patel following dismissal of the bank's High Court suit (Civil Case No. 875 of 2001), the bank deposited Kshs.17,000,000 into a joint interest-earning account at Guardian Bank in the names of both firms of advocates. The bank sought to have the money released to its own advocates, contending that the consent was procured through material non-disclosure, chiefly that the 1st respondent, Vinod Patel, is deceased and incapable of operating his account, and relying on this Court's ruling of 4th February 2022. The Court held that the earlier ruling made no decisive finding of death; it merely observed counsel's evasiveness and the lack of jurisdiction to entertain an application by a deceased party absent his legal representative. Applying Hirani vs. Kassam (1952) EACA 131, the Court found a consent order binding absent fraud, collusion or material non-disclosure, none of which was proved. The presumption of death cannot rest on speculation; section 118A of the Evidence Act prescribes the procedure. Further, even if death were proved, the appeal, having been determined on 27th September 2019, could not abate or revive. The applicant also showed no prejudice from the funds remaining in the joint account. The application was dismissed with no orders as to costs.

Key legal issues

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01

Whether the consent order of 24th October 2012 should be set aside for fraud or material non-disclosure

Holding

The applicant failed to demonstrate any ground warranting setting aside the consent order, including the alleged death of the 1st respondent

Reasoning

The Court applied the Hirani vs. Kassam principles, holding that a consent order is binding unless obtained by fraud, collusion, ignorance or misapprehension of material facts. The applicant relied only on the presumption that the 1st respondent was deceased, without producing a death certificate or other evidence, and had not attempted to trace him or commence citation proceedings. Absent proof of material non-disclosure, the consent order stood.

p. 5
02

Whether the earlier ruling of 4th February 2022 constituted a decisive finding that the 1st respondent is deceased

Holding

It did not; the Court only observed the evasive response of the 1st respondent's counsel and found it lacked jurisdiction to entertain an application by a party absent his legal representative

Reasoning

The applicant sought to anchor the present application on the 4th February 2022 ruling. The Court clarified that the earlier ruling merely noted counsel's failure to deny the alleged death and held only that a deceased party's application could not be entertained without his legal representative being joined; it made no conclusive finding of death, and the same fate befell the present application.

p. 4
03

Whether the appeal has abated under rule 99 (now 102) of the Court of Appeal Rules

Holding

Even if death were proved, abatement could not occur because the appeal was already heard and determined on 27th September 2019

Reasoning

The Court acknowledged that under rule 102(2) an appeal abates if no application to join a legal representative is made within twelve months of death. However, since the appeal had already been heard, determined and judgment delivered in favour of the 1st respondent, the question of abatement or revival had been overtaken by events; only the release of held costs remained at issue.

p. 4
04

Whether the deposited costs should be released to the applicant

Holding

No; the 1st respondent remains entitled to his costs, and releasing them to the now-liquidating applicant would serve no judicial purpose

Reasoning

The Court upheld the High Court decision, so the 1st respondent is entitled to his costs held in the joint interest-earning account. Releasing the funds to the applicant, who is in liquidation, would expose them to being unrecoverable should the 1st respondent or his estate later claim them; the applicant also showed no prejudice from the money remaining in the joint account.

p. 5

Legal principles established

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  • A consent order entered with the consent of counsel is binding and cannot be varied or discharged except on grounds such as fraud, collusion or material non-disclosure
  • A person cannot be presumed dead by speculation; facts must be adduced before such presumption, under section 118A of the Evidence Act
  • Under rule 102 of the Court of Appeal Rules, 2022, an appeal does not automatically abate on death; the legal representative must be joined on application within twelve months

Court orders

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  1. 1.The application dated 9th February 2022 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Appellate Jurisdiction Actsections 3A, 3B
  • Court of Appeal Rulesrules 1(2), 31, 47, 53(2)(d)
  • Court of Appeal Rules (2010)rule 99(1) and (2)
  • Court of Appeal Rules, 2022rule 102(1) and (2)
  • Evidence Actsection 118A

Cases cited (1)

  • Hirani vs. Kassam
    (1952) EACA 131

    Principles for setting aside consent orders - binding unless obtained by fraud, collusion, or ignorance/misapprehension of material facts

On appeal from
High Court at Nairobi
Civil Case No. 875 of 2001
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act and rules 1(2), 31, 47, 53(2)(d) of the Court of Appeal Rules

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, "Trust Bank Limited v Patel & 3 others", Case Analysis (2023). Civil Application 205 (UR 152/2015) of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1664/eng@2023-12-08

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