Kelvin Njiuri Mwaura v Mwangi Mwaura [2018] KEELC 3317 (KLR)
The bottom line
#A Kenyan court refused to undo a settlement, confirming that consent orders stand unless fraud, collusion or misrepresentation is proven.
What this practically means
#Executive summary
#Key legal issues
#Whether the consent order was recorded without instructions from the Defendant
No: the admitted sum of Kshs 202,600 was disposed of by the Defendant's own pleadings, and the contested amounts were left for trial, so nothing was improperly compromised
The court held that Kshs 202,600 was admitted in the Defence and draft amended Defence, so that part of the consent merely reflected the Defendant's own admission and cannot be impugned for want of instructions. Part (b) of the consent, covering the contested Kshs 24,200, breach and costs, disposed of no rights and was left for trial or settlement. The court preferred the Plaintiff's counsel's affidavit account of the events of 7/11/17 over those of the Defendant, his son and his advocate.
Whether the consent was null and void because Mr. Gikandi's practising certificate was under suspension in 2017
No: under section 34B(2) of the Advocates Act and the Supreme Court's decision in National Bank of Kenya Ltd v Anaj Warehousing Ltd, a document prepared by an advocate without a current practising certificate remains valid
The court traced sections 9, 34 and 34B of the Advocates Act, noting that the penalty for acting without a practising certificate falls on the unqualified person, not on the validity of the document. Relying on the Supreme Court's dictum in National Bank of Kenya Ltd v Anaj Warehousing Ltd, which reversed National Bank of Kenya v Wilson Ndolo Ayah, the court held that documents prepared by an advocate merely lacking a current certificate are not void, unlike those prepared by non-advocates or struck-off advocates. The consent therefore survived the suspension.
Whether the consent was given without sufficient material facts
No: the admitted funds were held by the joint advocate Mbiyu Kamau for transmission to the Plaintiff, and this was known and admitted in the pleadings
The Defendant argued that the consent omitted the material fact that the Kshs 202,600 was held by the firm of Mbiyu Kamau, the joint advocate for both parties. The court found this fact was common ground and admitted in the pleadings and in the joint advocate's letter of 13/3/13, so no material fact was withheld. No fraud, collusion or misrepresentation was found on the part of Mr. Gikandi.
Legal principles established
#- A consent judgment can only be set aside in circumstances similar to those that vitiate a contract, such as fraud, collusion, misrepresentation of fact, or consent given without sufficient material facts.
- A document prepared by an advocate who held no current practising certificate is not invalidated by section 34(1)(a) of the Advocates Act; only documents prepared by non-advocates or advocates struck off the roll are void.
- Section 34B(2) of the Advocates Act preserves the validity of legal documents drawn or prepared by an advocate without a valid practising certificate.
- A party is bound by an admission in his own pleadings and cannot claim lack of instructions in respect of a consent disposing of the admitted amount.
Court orders
#- 1.The Defendant's application to review and/or set aside the consent order of 7/11/2017 is dismissed
- 2.The Defendant shall meet the costs of the application
- Jurisdiction invoked
- Sections 1, 2 and 3A of the Civil Procedure Act and Order 45 and 51 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kelvin Njiuri Mwaura v Mwangi Mwaura [2018] KEELC 3317 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3317/eng@2018-05-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.