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ELCDismissedNotice of Motion dated 16.2.2015· [2016] KEELC 985 (KLR)

Annah Wanjiku Kamau v Joseph Kimani Mbugua & another [2016] KEELC 985 (KLR)

High Court of Kenya
1 April 2016
AOANTONY OMBWAYO
724 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 Eldoret refused to undo a settlement because the plaintiff proved no fraud, misrepresentation or mistake behind it.

What this practically means

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Executive summary

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The plaintiff, Annah Wanjiku, moved the court by Notice of Motion dated 16th February 2015 seeking to set aside a consent judgment entered on 21st November 2014, under which the 2nd defendant paid her Kshs.700,000/= towards the judgment and Kshs.50,000/= as advocates' costs, with both parties signing that there would be no further claims. She alleged she entered the consent unconsciously without comprehending its consequences, that the refund was a miscarnage of justice given the property's rental value since 2007, that the defendants had been unjustly enriched by collecting rent, and that a consent agreement may be set aside where fraud is alleged. She also claimed to have suffered hypertension, diabetes and subdural hematoma upon comprehending the consent's effect. The 2nd defendant opposed, arguing that a consent judgment can only be set aside on grounds that would invalidate a contract, that no fraud was established, that the consent was entered willingly with the benefit of legal advice, and that the rent issue was unpleaded. The court found that the law governing setting aside consent judgments is the same as that governing setting aside contracts, with grounds of misrepresentation, fraud, mistake, duress, incapability and illegality. Although fraud and misrepresentation were pleaded, the court found no evidence of them and held that the burden of proof, which is higher than a balance of probability, was not discharged. Noting that the plaintiff had been represented by able counsel who ought to have detected any unfavourable bargain, the court dismissed the application with costs.

Key legal issues

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01

Grounds for setting aside a consent judgment

Holding

A consent judgment stands unless it is vitiated by grounds that would invalidate a contract at law

Reasoning

The court held that both parties agreed on the applicable law and framed the grounds as misrepresentation, fraud, mistake, duress, incapability and illegal contract. Absent proof of any of these, the consent must stand. Representation by counsel during negotiation weighs against a claim of mistake or misunderstanding.

p. 3
02

Burden and standard of proof for alleging fraud in an application to set aside consent

Holding

The burden lies on the plaintiff and the standard is higher than on a balance of probability; it was not met

Reasoning

The plaintiff alleged fraud, misrepresentation and unconsciousness but adduced no evidence. The court found the burden undischarged, noting the plaintiff had the benefit of legal counsel during negotiation, which negates any claim of mistake or lack of comprehension of the consent's terms.

p. 3

Legal principles established

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  • A consent judgment can only be set aside on the same grounds that would invalidate a contract: misrepresentation, fraud, mistake, duress, incapability and illegality
  • The burden of proving fraud or misrepresentation lies on the party alleging it and the standard of proof is higher than a balance of probability

Court orders

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  1. 1.The Notice of Motion dated 16.2.2015 seeking to set aside the consent judgment is dismissed
  2. 2.Costs awarded to the 2nd defendant
Jurisdiction invoked
Inherent jurisdiction to set aside consent judgments on grounds that would invalidate a contract

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, "Annah Wanjiku Kamau v Joseph Kimani Mbugua & another [2016] KEELC 985 (KLR)", Case Analysis (2016). Notice of Motion dated 16.2.2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/985/eng@2016-04-01

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