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ELCDismissedNot stated in the judgment· [2018] KEELC 3317 (KLR)

Kelvin Njiuri Mwaura v Mwangi Mwaura [2018] KEELC 3317 (KLR)

Environment and Land Court (not expressly named in the judgment; delivered at Murang'a by a Judge)
10 May 2018
3,242 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to undo a settlement, confirming that consent orders stand unless fraud, collusion or misrepresentation is proven.

What this practically means

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Executive summary

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The Defendant applied under sections 1, 2 and 3A of the Civil Procedure Act and Orders 45 and 51 of the Civil Procedure Rules to review and/or set aside a consent order recorded on 7/11/2017, by which judgment was entered for the Plaintiff on the admitted sum of Kshs 202,600, with the contested Kshs 24,200, breach and costs left for trial. The Defendant argued that he gave no instructions to record the consent, that his advocate Mr. Gikandi, holding brief for Wokabi Mathenge & Co., acted without authority, and that Gikandi's 2017 practising certificate was suspended, rendering the consent null and void. The Plaintiff contended the consent was freely recorded, that Gikandi had called the joint advocate Mbiyu Kamau who gave the go-ahead, and that the sum was admitted in the pleadings. The court, framed two issues: whether the consent should be set aside and who bears the costs. Applying Hirani v Kassam, it held a consent order can only be set aside on grounds that vitiate a contract. It found the admitted sum bound the Defendant by his pleadings, that part (b) of the consent disposed of no rights, and preferred the Plaintiff's counsel's account of events. On the practising certificate point, applying section 34B(2) of the Advocates Act and the Supreme Court's decision in National Bank of Kenya Ltd v Anaj Warehousing Ltd, which distinguished National Bank of Kenya v Wilson Ndolo Ayah, the court held the consent was not invalidated by Gikandi's suspension. The application was dismissed with costs to the Defendant.

Key legal issues

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01

Whether the consent order was recorded without instructions from the Defendant

Holding

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

Reasoning

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.

p. 3
02

Whether the consent was null and void because Mr. Gikandi's practising certificate was under suspension in 2017

Holding

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

Reasoning

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.

p. 4
03

Whether the consent was given without sufficient material facts

Holding

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

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The Defendant's application to review and/or set aside the consent order of 7/11/2017 is dismissed
  2. 2.The Defendant shall meet the costs of the application

Authorities

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Legislation

  • Civil Procedure ActSections 1, 2, 3A
  • Civil Procedure RulesOrder 45, Order 51
  • Advocates Act Cap 16Sections 2, 9, 10, 12, 13, 27, 34, 34B, 44, 60(4)

Cases cited (9)

  • Samson Munikah Vs Wedube Estate
    CA No 126 of 2005
  • Hirani vs Kassam
    (1952) 19 EACA 31
  • Karania & 47 others vs. Kijana & 2 others
    Eldoret Civil Appeals Nos. 43 and 153 of 1986 (consolidated)
  • Munyiri vs. Ndunguya
    Nyeri Civil Appeal No. 60 of 1983
  • Samuel Mbugua Ikumbu vs. Barclays Bank of Kenya
    Nairobi Civil Application No. 1 of 2015
  • John Ongwano Nyawaya vs. Joseph Owalo & Another
    Nakuru H.C. Civil Case No. 435 of 1997
  • Joseph Murimi Karitu vs. Martin Muriuki Mugo
    Nyeri ELRC Case No. 49 of 1987
  • National Bank of Kenya Ltd versus Anaj Warehousing Ltd
    (2015) eKLR
  • National Bank of Kenya vs Wilson Ndolo Ayah
    Civil Appeal No. 119 of 2002 (unreported)
Jurisdiction invoked
Sections 1, 2 and 3A of the Civil Procedure Act and Order 45 and 51 of the Civil Procedure Rules

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, "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.