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ELCDismissedKisii Civil Appeal No. 9 of 2012· [2016] KEELC 39 (KLR)

Diocese of Kisii Registered Trustee & 2 others v Hezekiah Mairura Ongeri & another [2016] KEELC 39 (KLR)

High Court of Kenya at Kisii
2 December 2016
2,694 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court in Kisii confirmed that once your advocate records a settlement in court, it binds you unless you can prove 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 Hon. V. W. Wandera, SPM delivered on 9th February 2012 in Kisii CMCC No. 478 of 2007, by which the trial magistrate dismissed the defendants' Notice of Motion dated 1st July 2011 seeking to discharge or set aside a consent order dated 11th March 2009 and the judgment adopting the District Land Registrar's award of 14th November 2008. The suit originated in a plaint alleging that the defendants were constructing a perimeter wall blocking the access road to the plaintiffs' parcels, with a claim for a declaration of a road of access. The consent recorded by Nyatundo & Co. Advocates for the plaintiffs and Ayiema Mbicha & Co. Advocates for the defendants marked the application of 5th March 2009 as settled and confirmed the land registrar's findings as judgment. On appeal, the appellants argued the advocate lacked instructions, the consent was procured by fraud and misrepresentation, and the court lacked jurisdiction over a boundary dispute under Section 21(4) of the Registered Land Act (repealed). J. M. Mutungi J. re-evaluated the record as required on a first appeal, found Mr. Mbicha had appeared for the defendants throughout and had ostensible authority, held no fraud was proved, and applied the principles in Kenya Commercial Bank Ltd v Specialised Engineering Co. Ltd [1982] KLR 485. On jurisdiction, he held the court could grant conservatory orders pending the registrar's determination of the boundary and stay the suit for reference to the registrar. The appeal was dismissed with costs to the respondents.

Key legal issues

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01

Whether Ayiema Mbicha & Co. Advocates were properly on record and had authority to compromise the suit

Holding

The advocate was duly instructed and had ostensible/implied general authority to record the consent order adopting the land registrar's award as judgment

Reasoning

The record showed Mr. Mbicha appeared for the defendants on 31st October 2007, 9th November 2007 and 11th December 2007 even while Mose & Mose were on record, and filed a notice of change of advocates on 28th January 2009. It was inconceivable he attended court without instructions. Both parties participated in the arbitral proceedings before the land registrar, confirming the consent referring the matter had been sanctioned. No express negative direction was proved.

p. 4
02

Whether the consent order of 11th March 2009 was validly entered into and binding

Holding

The consent was valid and binding; no fraud, collusion, non-disclosure or misapprehension of material facts was proved to justify setting it aside

Reasoning

The trial magistrate correctly applied the principles in Kenya Commercial Bank Ltd v Specialised Engineering Co. Ltd [1982] KLR 485. A consent order is binding and not lightly set aside. The appellants exhibited no evidence of fraud; the award was adopted following an order of reference to arbitration made in the presence of the defendants' advocate, and the defendants participated in the arbitration and gave evidence.

p. 3
03

Whether the trial court lacked jurisdiction over the suit as a boundary dispute under Section 21(4) of the Registered Land Act

Holding

The court had jurisdiction; it could grant conservatory/injunctive relief pending determination of the boundary dispute by the land registrar and refer the boundary issue to the registrar

Reasoning

Although the jurisdiction issue was not raised before the trial magistrate, the judge dealt with it. The plaintiffs sought a declaration of a road of access and restraint orders; the land registrar has no power to issue injunctive reliefs, so the court could properly entertain the injunction application while referring the essentially boundary dispute to the registrar. Section 21(4) barred entertaining boundary disputes only where boundaries had not been determined as provided in that section.

p. 5

Legal principles established

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  • A consent order entered into by counsel is binding and cannot be set aside or varied unless it is proved that it was obtained by fraud or collusion or by an agreement contrary to the policy of the court or where the consent was given without sufficient material facts or in misapprehension or ignorance of such facts.
  • A duly instructed advocate has implied general authority to compromise and settle the action, and the client cannot avail himself of any limitation of that implied authority unless it was brought to the notice of the other side.
  • Even where a dispute relates to a boundary dispute, the court may issue preservation or conservatory orders pending determination of the boundary dispute by the land registrar, and may stay the suit and refer the boundary issue to the registrar.
  • A first appellate court must re-evaluate the evidence before the trial court and consider whether the magistrate applied wrong principles or considered matters he ought not to have considered.

Court orders

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  1. 1.The appellants' appeal is dismissed
  2. 2.Costs of the appeal awarded to the respondents

Authorities

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Legislation

  • Registered Land Act, Cap 300 Laws of Kenya (repealed)Section 21(4)

Cases cited (1)

  • Kenya Commercial Bank Ltd vs Specialised Engineering Co. Ltd
    [1982] KLR 485
On appeal from
Senior Principal Magistrate's Court, Kisii
Kisii CMCC No. 478 of 2007
Jurisdiction invoked
First appellate jurisdiction of the High Court over appeals from subordinate courts (suits involving land disputes; appeal from ruling in Kisii CMCC No. 478 of 2007)

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, "Diocese of Kisii Registered Trustee & 2 others v Hezekiah Mairura Ongeri & another [2016] KEELC 39 (KLR)", Case Analysis (2016). Kisii Civil Appeal No. 9 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/39/eng@2016-12-02

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