Joshua Kinyua Kiarie & another (suing for and on behalf of the estate of Joyce Wamaitha (deceased) v Muiruri Wainaina & another [2019] KEELC 1327 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the consent judgment adopted as the judgment of the Court can be set aside
The consent judgment cannot be set aside as no fraud, collusion, mistake or absence of material facts was demonstrated; Counsel had full instructions
The Court reviewed the settled law on setting aside consent judgments (Hirani v Kassam, Brooke Bond Liebig v Mallya, Munyiri v Ndungunya, Samuel Mbugua Ikumbu). It found nothing to show Counsel acted without instructions, that instructions had been terminated, or that any fraud or collusion existed. All material facts were known to the parties and the compromise terms were clear and unequivocal, leaving no room for mistake or misapprehension.
Whether the Land Registrar's report filed out of the 90-day period without leave should be expunged
The report was unchallenged and had been adopted as the judgment of the Court; the Court did not purge it
The report dated 19th December 2017 was filed on 9th January 2018 after the 90-day period set in the consent. Time had, however, been extended by the Court on 23rd November 2017 by 30 days, and the report was confirmed filed at the mention of 7th March 2018 with the Defendant's Advocate present seeking a copy. The report went unchallenged and was adopted as judgment on 20th February 2019.
Whether the Applicant can challenge the consent judgment by this application rather than appeal or review
The application did not meet the threshold for setting aside a consent judgment; the proper avenue where a party has a problem with a judgment is appeal
The Respondents argued that what the Applicants sought to undo was a finalized judgment, and the only avenue was appeal. The Court held that the procedure available to challenge a consent order or judgment is by way of an application for review or a different suit, and that the inherent jurisdiction cannot be invoked where rules provide the procedure. No grounds for review were established.
Legal principles established
#- A consent judgment or order is binding and can only be varied or set aside on grounds such as fraud, collusion, agreement contrary to the policy of the Court, or consent given without sufficient material facts, in misapprehension or ignorance of material facts
- Once a consent order or judgment has been entered into by the parties, the procedure to challenge or set it aside is by way of an application for review or a different suit
- Counsel with full instructions has authority to compromise all matters connected with the action
Court orders
#- 1.The Application dated 5th July 2019 is dismissed with costs to the Respondents
- Jurisdiction invoked
- Sections 3 and 3A, Order 10 Rule 11, Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joshua Kinyua Kiarie & another (suing for and on behalf of the estate of Joyce Wamaitha (deceased) v Muiruri Wainaina & another [2019] KEELC 1327 (KLR)", Case Analysis (2019). Notice of Motion dated 5th July 2019 ( suit filed 5th June 2014, Nyeri ELC ). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1327/eng@2019-10-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.