Margaret Wambui Mwangi v District Land Registrar Kirinyaga & another [2017] KEELC 1404 (KLR)
The bottom line
#A Kenyan court wiped out a land consent order recorded by a lawyer with no authority, warning that counsels without proper instructions cannot bind parties.
What this practically means
#Executive summary
#Key legal issues
#Whether the consent order of 2nd May 2017 was validly recorded on behalf of the 2nd defendant
It was not; Ngigi Gichoya advocate was neither properly on record (no service of notice of change of advocates on the former firm) nor instructed by the 2nd defendant, so the consent was a fraud and a nullity and was set aside unconditionally
The firm of J.M. Njenga & Company Advocates entered appearance for the 2nd defendant in 2015 and remained on record. Order 9 Rules 5 and 6 of the Civil Procedure Rules require filing and service of a notice of change of advocates; none was served on the former advocate, and the 2nd defendant never instructed Ngigi Gichoya. Ngigi's unrebutted failure to respond to the fraud allegation confirmed this. A consent recorded without instructions is a nullity which the Court must set aside together with all consequential orders, including entries made by the 1st defendant on the title.
Whether the Court should recommend criminal prosecution of the advocates involved
The Court declined, expressing strong deprecation of Ngigi Gichoya's conduct as sufficient caution, while leaving Jeremy Njenga free to pursue any charges; no fault was found with Ms Muthike, who was only holding brief for the plaintiff's firm
The Court distinguished the roles: Ms Muthike was holding brief for Kahuthu & Kahuthu, the firm still properly on record for the plaintiff, and that firm did not deny instructing her. For Ngigi Gichoya, the Court considered its strong expressions of deprecation sufficient, noting that as officers of the Court advocates owe fidelity both to clients and to the Court, and that the applicant is at liberty to pursue charges independently.
Legal principles established
#- A consent order recorded by counsel without instructions, or by counsel not properly on record, is a fraud and a nullity which the Court must set aside
- Prima facie a consent order made in the presence and with the consent of counsel binds all parties and cannot be varied or discharged unless obtained by fraud, collusion, agreement contrary to policy of the Court, or for reasons that would justify setting aside an agreement (Hirani v Kassam, approved in Brooke Bond Liebig v Mallya)
- Unless and until notice of change of advocate is filed and served in accordance with Order 9 Rules 5 and 6 of the Civil Procedure Rules, the former advocate remains the advocate of the party until final conclusion of the cause or matter
- An advocate has general authority to compromise on behalf of his client as long as he is acting bona fide and not contrary to any express directions
Court orders
#- 1.The consent order dated 2nd May 2017 purportedly recorded between the plaintiff and the 2nd defendant and all consequential orders including any entries made by the 1st defendant as against title No. KIINE/THIGIRICHI/527 in the records held by the 1st defendant are set aside unconditionally
- 2.The status quo as regards the said title existing prior to the said consent is to be maintained
- 3.The plaintiff shall meet the costs of the application
- Jurisdiction invoked
- Not expressly stated; the Court exercised its inherent and supervisory powers over proceedings before it (including setting aside consent orders) under the Civil Procedure Act and Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Margaret Wambui Mwangi v District Land Registrar Kirinyaga & another [2017] KEELC 1404 (KLR)", Case Analysis (2017). Not stated in the judgment (Originating Summons filed 3rd June 2015; Notice of Motion dated 8th September 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1404/eng@2017-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.