Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the extract (suit concerning LR No. NORTH WANGA/MAYONI/449)· [2018] KEELC 1771 (KLR)

Risper Maende Olando v Praxidis A. Osale & 6 others [2018] KEELC 1771 (KLR)

High Court of Kenya
18 September 2018
NMN.A. Matheka
1,533 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

The High Court in Kakamega dismissed an attempt to undo a land dispute settlement, confirming that consent orders your lawyer signs bind you unless you prove fraud or similar grounds.

What this practically means

#

Executive summary

#
The applicant, the 3rd defendant in a land dispute concerning LR No. North Wanga/Mayoni/449, moved the court by notice of motion dated 3rd April 2018 seeking to set aside consent orders (recorded following a consent signed by all counsels and filed on 14/1/2013), which required the 1st and 2nd defendants to surrender title deeds for cancellation, and to vary the orders so the suit could proceed on merit, plus costs. He argued the consent lacked his input and instructions, that the title deed's existence was unconfirmed, and that the orders were unenforceable and incomplete. The respondents countered that the consent was voluntarily made through counsel with unconditional authority, was binding, and that the application, brought over five years later, was an afterthought and abuse of process aimed at frustrating pending contempt proceedings. Matheka J reviewed the settled principles: a consent judgment has contractual effect and can only be set aside on grounds justifying setting aside a contract - fraud, collusion, agreement contrary to public policy, insufficient or misapprehended material facts, or other sufficient reason (Hirani v Kassam; Flora N. Wasike v Destimo Wamboko; KCB v Specialised Engineering; S M N v Z M S; Purcell v Trigell). A duly instructed advocate has implied authority to compromise, and the applicant failed to show counsel acted without instructions; indeed the applicant himself paid the Ksh. 35,000 costs under the consent. None of the set-aside conditions was satisfied. The application was dismissed with costs on 18th September 2018 at Kakamega.

Key legal issues

#
01

Whether the consent order was entered without the applicant's instructions

Holding

The applicant's advocate had full instructions; the consent was initiated, drafted, served and signed by the counsels on record, and the applicant even paid the Ksh. 35,000 costs under it

Reasoning

The court traced the history: the 3rd defendant was represented by M/s C.M. Mwebi & Co. Advocates from 11th June 2012 and the 1st-5th defendants by Shitsama & Co. Advocates. The consent was initiated by Shitsama on 9th July 2012, a draft was served on all counsels, and it was signed by all counsels and filed on 14/1/2013. The applicant himself paid Ksh. 35,000 costs per the attached correspondences, evidencing participation and knowledge.

p. 3
02

Whether any of the recognized grounds for setting aside a consent order were established

Holding

None of the six conditions (fraud, collusion, agreement contrary to policy, insufficient material facts, misapprehension or ignorance of material facts, other sufficient reason) were satisfied

Reasoning

Relying on Hirani v Kassam, Flora N. Wasike v Destimo Wamboko, Purcell v F C Trigell, KCB v Specialised Engineering and S M N v Z M S, the court reiterated that a consent order has contractual effect and is binding unless set-aside grounds are proved. Ostensible authority of counsel prevails absent contrary instructions communicated to the other side; the burden lay on the applicant and was not discharged.

p. 2

Legal principles established

#
  • A consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting aside a contract, or if conditions remain unfulfilled
  • A consent order entered by counsel is binding and can only be set aside on grounds such as fraud, collusion, agreement contrary to public policy, or misapprehension/insufficiency of material facts
  • A duly instructed advocate has implied general authority to compromise and settle the action, which the client cannot privately limit against the other side
  • Section 67(2) of the Civil Procedure Act is not an absolute bar to challenging a consent decree where invalidity ab initio is proved

Court orders

#
  1. 1.The notice of motion dated 3rd April 2018 is dismissed with costs

Authorities

#

Legislation

  • Civil Procedure ActSection 67(2)

Cases cited (8)

  • Wasike -vs- Wamboka
  • Hirani vs Kassam
    (1952) 19 EACA 131
  • Flora N. Wasike vs Destimo Wamboko
    (1988) eKLR
  • J M Mwakio vs Kenya Commercial Bank Ltd
    Civil Appeals 28 of 1982 and 69 of 1983
  • Purcell vs F C Trigell Ltd
    (1970) 2 All ER 671
  • Kenya Commercial Bank Ltd vs Specialised Engineering Co. Ltd
    (1982) KLR 485
  • S M N v Z M S & 3 others
    (2017) eKLR
  • Lenina Kemigisha Mbabazi Star Fish Limited vs Jing Jeng International Trading Ltd
    HCT-00-MA-344-2012
Jurisdiction invoked
Civil Procedure Act, Cap 21, Section 67(2) (setting aside/varying consent decrees)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Risper Maende Olando v Praxidis A. Osale & 6 others [2018] KEELC 1771 (KLR)", Case Analysis (2018). Not stated in the extract (suit concerning LR No. NORTH WANGA/MAYONI/449). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1771/eng@2018-09-18

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