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ELCDismissedNot stated in the excerpt· [2019] KEELC 2735 (KLR)

Wanandege Co-operative Savings & Credit Sacco Ltd v Paul Musili & 5 others; Nairobi City Council(Third Party) [2019] KEELC 2735 (KLR)

High Court of Kenya
20 May 2019
LKL. KOMINGOI
772 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court dismissed Paul Musili's attempt to undo a 2012 consent order, confirming that such orders bind parties unless fraud or collusion is proven.

What this practically means

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Executive summary

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This was a ruling on a notice of motion dated 21st September 2017 brought by the 1st defendant, Paul Musili, under Section 3A of the Civil Procedure Act. He sought to set aside a consent notice/letter filed on 6th March 2012 and the order recorded pursuant to it, on the grounds that the consent was filed without his authority and that it effectively compromised the entire suit, including the plaintiff's claim and the defendants' counterclaim, with each side withdrawing and no subsequent action permitted on the same cause of action. He also sought reinstatement of the suit for hearing and costs. The application was unsupported by any response from the plaintiff and was canvassed by written submissions filed only by the applicant. The court framed a single issue: whether the application was merited. Relying on Hirani vs Kassam as adopted in Kenya Commercial Bank Ltd vs Benjoh Amalgamated Ltd, and on Kenya Commercial Bank Ltd vs Specialized Engineering Co. Ltd, the court reiterated that a consent order has contractual effect and binds all parties unless fraud, collusion, an agreement contrary to public policy, or decisions made in misapprehension or ignorance of material facts are proved. The applicant admitted his former advocates, M/S Malonza & Co. Advocates, had instructions to act for him, and the court found he had not demonstrated any ground for setting aside the consent. The court further described the application as an afterthought. The motion was dismissed with no orders as to costs.

Key legal issues

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01

Whether the consent notice/order of 6th March 2012 should be set aside on the ground that counsel acted without the 1st defendant's authority

Holding

The application fails; the applicant did not prove any ground justifying setting aside the consent order, and did not deny that his former advocates had instructions to act for him.

Reasoning

Relying on Hirani vs Kassam and KCB vs Specialized Engineering, the court held that a consent order has contractual effect and is binding unless fraud, collusion, misapprehension of material facts or similar grounds are proved. The applicant admitted his former advocates had instructions to act; his assertion of lack of authority was unsupported. The court found the application an afterthought and dismissed it with no orders as to costs.

p. 2

Legal principles established

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  • A consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside
  • A consent order entered into by counsel is binding on all parties and cannot be set aside or varied unless obtained by fraud, collusion, agreement contrary to the policy of the court, or without sufficient material facts

Court orders

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  1. 1.The notice of motion dated 21st September 2017 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 3A

Cases cited (3)

  • Kenya Commercial Bank Ltd vs Benjoh Amalgamated Ltd
  • Hirani vs Kassam
    [1952] 19 EACA 131
  • Kenya Commercial Bank Ltd vs Specialized Engineering Co. Ltd
    [1982] KLR 485
Jurisdiction invoked
Section 3A of the Civil Procedure Act (inherent power of the court)

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, "Wanandege Co-operative Savings & Credit Sacco Ltd v Paul Musili & 5 others; Nairobi City Council(Third Party) [2019] KEELC 2735 (KLR)", Case Analysis (2019). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2735/eng@2019-05-20

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