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Court of AppealDismissedCivil Appeal at Malindi (ELC Case No. 174 of 2014 appeal)· [2024] KECA 493 (KLR)

Adolfo Guzzini & 1 other v Emmanuel Charo Tinga & 7 others

Court of Appeal of Kenya
26 April 2024
AMA. K. MurgorKLDr. K. I. LaibutaGOG. V. Odunga
3,573 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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The Court of Appeal confirmed that once you consent to a settlement through your lawyer, you can only escape it by proving fraud or collusion.

What this practically means

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Executive summary

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This is a first appeal from the ruling of Olola, J of the Environment and Land Court at Malindi delivered on 31st August 2021, dismissing the appellants' Motion dated 16th September 2020 seeking to set aside a consent judgment recorded on 10th April 2019 in ELC Case No. 174 of 2014. The appellants, Italian nationals who were registered proprietors of Plot No. 945 Watamu, sued for declarations that titles held by the respondents were null and void and for a survey of encroachment by parcel Kilifi/Jimba/1126. Their then advocates, Ahmednasir Abdikadir & Company, recorded a consent judgment following an independent survey report, under which the encroached area was retained within Kilifi/Jimba/1126, boundaries of Plot 945 adjusted, a new title issued, and related suits marked settled. The appellants later claimed they were unaware they were ceding part of their land and sought to set the consent aside, to have new advocates come on record, and to have the suit heard on its merits. The ELC dismissed the Motion, holding that counsel had implied general authority to compromise. The Court of Appeal framed one issue: whether the trial court erred in declining to set aside the consent orders. Applying the settled principle that a consent judgment is contractual in nature and may only be impeached on grounds such as fraud, collusion or impropriety offending policy, and that a duly instructed advocate has implied authority to compromise absent communicated negative directions, the Court found no vitiating ground established. It dismissed the appeal with costs and upheld the ruling and orders of the ELC. The judgment binds lower courts on the inviolability of consent judgments absent fraud, collusion, mistake or misrepresentation.

Key legal issues

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01

Circumstances in which a consent judgment may be set aside

Holding

A consent judgment may only be set aside on grounds that would justify varying or rescinding a contract between the parties - fraud, collusion, or agreement contrary to the policy of the court.

Reasoning

The Court relied on Brooke Bond Liebig Ltd v Mallya and Board of Trustees National Social Security Fund v Micheal Mwalo, holding that a consent order embodies an agreement between parties and is enforceable while it stands. The appellants adduced no proof of fraud, collusion, misrepresentation or other vitiating factors; their complaint that they were unaware of the consent's contents was a matter between client and counsel. The appeal therefore failed.

p. 7
02

Implied authority of counsel to record consent judgments

Holding

A duly instructed advocate has implied general authority to compromise a client's suit, and the consent so recorded binds the client absent proof of express negative directions communicated to the other side.

Reasoning

The Court adopted Harris J's dictum in Kenya Commercial Bank Ltd v Specialized Engineering Company Ltd, as applied by the ELC, that counsel acting bona fide and not contrary to express negative directions has general authority to compromise. Instructions to counsel had not been withdrawn when the consent was recorded, and a court is not obliged to inquire into the terms on which counsel is instructed or into negotiations between counsel.

p. 4
03

Party's duty to seek setting aside of a consent order rather than defend against enforcement

Holding

A party affected by a consent judgment must move to have it set aside in duly constituted proceedings; it cannot simply resist enforcement or wait to raise defences later.

Reasoning

Following Wildung v Sanderson, the Court noted that a consent judgment is the formal embodiment of an agreement and places parties in a different position from an ordinary agreement. It remains enforceable while it stands, and a party seeking relief must actively pursue its setting aside rather than await enforcement.

p. 7

Legal principles established

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  • A consent judgment or order is contractual in nature and cannot be impeached except on grounds that would justify varying or rescinding a contract, such as fraud, collusion or other serious impropriety offending policy and legislation.
  • A duly instructed advocate has implied general authority to compromise and settle an action, and a client cannot rely on uncommunicated limitations of that authority; absent fraud, mistake or misrepresentation, consent orders stand.

Court orders

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  1. 1.The appellants' appeal is dismissed with costs
  2. 2.The Ruling and Orders of the Environment and Land Court of Kenya at Malindi (J O. Olola, J) delivered on 31st August 2021 in ELC Case No. 174 of 2014 are upheld
On appeal from
Environment and Land Court of Kenya at Malindi
ELC Case No. 174 of 2014
Jurisdiction invoked
First appeal to the Court of Appeal under the applicable appellate provisions (not expressly stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Adolfo Guzzini & 1 other v Emmanuel Charo Tinga & 7 others", Case Analysis (2024). Civil Appeal at Malindi (ELC Case No. 174 of 2014 appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/493/eng@2024-04-26

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