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ELCAllowedNot stated in the judgment text provided· [2018] KEELC 2172 (KLR)

James N Karangi v Nathan Mutiso & another [2018] KEELC 2172 (KLR)

Environment and Land Court
27 July 2018
OAO.A. Angote
1,607 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court set aside a consent judgment because a lawyer acted without her clients' instructions and was paid by an interested third party.

What this practically means

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Executive summary

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This was a ruling on the Defendants' Notice of Application dated 24th June 2014 seeking leave for B.M. Mung'ata & Co. Advocates to come on record, and orders varying, setting aside or expunging a consent Judgment dated 3rd May 2013, plus leave to withdraw the Defence and file a fresh one. The Plaintiff had sued the two Defendants, administrators of their late father's estate, seeking specific performance of an alleged sale of three acres of Mavoko Town Block 11/195. Their former advocate filed a Defence and then a consent Judgment acknowledging the sale and agreeing to facilitate transfer. The new advocates argued the Defence and consent were entered without instructions. The former advocate, who was cross-examined, maintained she acted on the 1st Defendant's instructions, but admitted she was paid Kshs. 30,000 instructions fees by a Director of Divisional Integrated Programmes Company Limited, a third party interested in the suit land who had purchased 29.5 acres and wished to have the Plaintiff's caution lifted. The court found the Defence anomalously admitted four acres when the Plaintiff claimed three, the consent Judgment omitted the acreage entirely, and the 2nd Defendant was never consulted. Concluding that the consent Judgment was a well orchestrated scheme to defraud the Defendants and that the advocate lacked instructions, the court allowed the Application as prayed on 27th July 2018 in Machakos.

Key legal issues

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01

Whether the Defence and consent Judgment were the product of the Defendants' instructions

Holding

The court found that the Defence and consent Judgment were orchestrated at the behest of a third party interested in the suit land, without the Defendants' instructions, and were a scheme to defraud the Defendants.

Reasoning

The advocate was paid instructions fees of Kshs. 30,000 by a Director of Divisional Integrated Programmes Company Limited, an interested third party. The Defence admitted 4 acres where the Plaintiff claimed only 3, and the consent Judgment did not specify the acreage to be transferred. The advocate did not advise her clients on these anomalies, and the 2nd Defendant was never consulted at all.

p. 2
02

Whether the advocate had instructions to act for the 2nd Defendant

Holding

The advocate had no instructions from the 2nd Defendant either to file the Defence or to enter into the consent Judgment.

Reasoning

The advocate testified that she prepared the Defence on the 1st Defendant's instructions without the 2nd Defendant's input, and entered into the consent Judgment without consulting the 2nd Defendant. Since the suit was against both Defendants, acting without one client's instructions vitiated both the Defence and the consent.

p. 2

Legal principles established

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  • An advocate cannot file a Defence or enter into a consent judgment without instructions from the client; a consent judgment entered without instructions is liable to be set aside.

Court orders

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  1. 1.Leave granted to the firm of B.M. Mung'ata & Co. Advocates to come on record for the Defendants
  2. 2.The consent Judgment dated 3rd May 2013 and filed on 8th May 2013 varied/set aside and/or expunged
  3. 3.Leave granted to the Defendants to withdraw the Defence on record and to file a fresh Defence
  4. 4.Costs of the Application provided for
Jurisdiction invoked
Inherent jurisdiction of the court to vary/set aside a consent judgment entered without instructions (application dated 24th June 2014)

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, "James N Karangi v Nathan Mutiso & another [2018] KEELC 2172 (KLR)", Case Analysis (2018). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2172/eng@2018-07-27

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