Joel Mwangi Kairanga v Joyce Wanjiku Mathara & another [2016] KEELC 1174 (KLR)
The bottom line
#A Kenyan court can undo a lawyer's settlement made without the client's knowledge or when the lawyer misrepresented their ability to act.
What this practically means
#Executive summary
#Key legal issues
#Whether the consent of 22.4.2015 withdrawing the suit with costs should be set aside
The consent was set aside because the applicant's advocate misrepresented his capacity (lack of a practising certificate) and withdrew the suit without consulting or informing the applicant.
The court held that consents may be set aside on grounds valid in contract, including misrepresentation or lack of capacity. The advocate had held himself out as having capacity to act; when that capacity was challenged, he negotiated and withdrew the suit with costs without the applicant's instructions. Allowing the consent to stand would let a party benefit from alleged fraud that remained undenied on the pleadings.
Whether pleadings filed by an advocate without a practising certificate must be struck out, rendering setting aside futile
The argument was rejected; following the Supreme Court's decision in National Bank of Kenya v Anaj Warehousing Ltd, pleadings filed by an unqualified advocate are not automatically struck out.
Counsel for the respondents argued that setting aside the consent would serve no purpose since the pleadings themselves were filed by an advocate without a practising certificate. The court noted that courts had long struck out such pleadings, but the Supreme Court settled the matter in Anaj Warehousing, overturning Wilson Ndolo Ayah. Hence the futility argument failed.
Legal principles established
#- A consent order can only be set aside on grounds which would justify setting aside a contract, such as misrepresentation or lack of capacity.
- Pleadings and documents filed by an advocate without a current practising certificate are not automatically struck out, following the Supreme Court's decision in National Bank of Kenya v Anaj Warehousing Ltd.
Court orders
#- 1.The application dated 7.3.2015 (amended 12.8.2015) is allowed
- 2.The consent recorded on 22.4.2015 is set aside with all its consequential orders
- 3.The applicant shall have costs of this application
- Jurisdiction invoked
- Original civil jurisdiction of the High Court over the suit; motion to set aside a consent order recorded in that suit (specific provision not stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joel Mwangi Kairanga v Joyce Wanjiku Mathara & another [2016] KEELC 1174 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1174/eng@2016-01-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.