Jafred Eshitemi Anywa v Philip Nandwa Mutende [2017] KEELC 2298 (KLR)
The bottom line
#The Environment and Land Court in Kakamega confirmed that a consent judgment you agreed to through your lawyer is very hard to undo, especially after a long, unexplained delay.
What this practically means
#Executive summary
#Key legal issues
#Whether the consent judgment of 10th November 2014 could be impeached
No; no evidence of fraud or collusion was established, and the consent was duly signed by both counsel on record
The court reviewed the record and found the consent judgment of 10th November 2014 was signed by both Musiega & Co Advocates for the plaintiff and Andia & Co Advocates for the defendant. Applying the settled law on consent orders, the applicant was required to prove fraud, collusion or misapprehension of material facts. The applicant's assertion that his then advocate acted without instructions was not supported by evidence, especially since new counsel never properly came on record to enable the allegation of collusion to be tested.
Whether the applicant's new advocates properly came on record
No; a notice of change of advocates is inapplicable where judgment has already been passed
The court held that Edwin Omulama & Associates, having replaced Andia & Co Advocates after judgment, was required either to file a consent with the former advocates allowing them to come on record or to make an appropriate application to the court with notice to the parties. Filing only a notice of change of advocates did not satisfy this requirement, which goes to substance and cannot be cured by Article 159(2)(d) of the Constitution.
Whether failure to cite the correct legal provision was fatal to the application
No; under Order 51 Rule 10(2) the application could not be refused for non-compliance with the requirement to state the correct provision
Although the applicant cited provisions (Articles 159(2)(d) and (e), Sections 1A and 3A CPA, Order 51 Rule 1) that do not empower review, the court held that Order 51 Rule 10(1) only requires the rule or provision to be 'ordinarily' stated, and Order 51 Rule 10(2) bars refusal of an application or objection for non-compliance. The court therefore considered the application on its merits rather than striking it out for citing the wrong law.
Whether the delay in bringing the application was excusable
No; the delay of nearly two years was unexplained and inconsistent with the applicant's claim of ignorance
The consent judgment was entered on 10th November 2014 and the application filed on 25th October 2016, a delay of almost two years. The respondent pointed out that the applicant was obtaining letters from the area chief and assistant chief in August and September 2015, long after judgment, which the court found inconsistent with an explanation of ignorance of the judgment and amounted to an attempt to subvert justice.
Legal principles established
#- A consent order entered into by counsel is binding on all parties and can only be set aside on proof of fraud, collusion, agreement contrary to the policy of the court, or ignorance/misapprehension of material facts
- A review may only be granted to correct an apparent error or omission on the part of the court that is self-evident
- A court will not interfere with a consent judgment except in circumstances that would justify varying or rescinding a contract between parties
Court orders
#- 1.The defendant/applicant's Notice of Motion dated 24th October 2016 is dismissed entirely
- 2.Costs of the application awarded to the plaintiff/respondent
- Jurisdiction invoked
- Articles 159(2)(d) and (e) of the Constitution; Sections 1A and 3A of the Civil Procedure Act (Cap 21); Order 51 Rule 1 of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jafred Eshitemi Anywa v Philip Nandwa Mutende [2017] KEELC 2298 (KLR)", Case Analysis (2017). Not stated in the extract (Notice of Motion dated 24th October 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2298/eng@2017-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.