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ELCDismissedELC Number 21 of 2012· [2019] KEELC 4489 (KLR)

Churchil Omollo Bodo v Lukio Otieno & another [2019] KEELC 4489 (KLR)

High Court of Kenya, Environment and Land Division
27 February 2019
SKS.M. Kibunja
1,410 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 in Kisumu refused to undo a settlement, confirming that your lawyer's signature on a court consent binds you.

What this practically means

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Executive summary

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The Defendants, Rev. Lukio Otieno and Rev. Walter Okeyo, moved the Court by notice of motion dated 19th March 2018 seeking to set aside a consent judgment dated 30th June 2016, by which counsel on record for both parties had compromised the plaintiff's suit by declaring null and void the award in Kisumu East/West Land Disputes Tribunal Case No. 47 of 2006, the Nyanza Land Disputes Appeals Committee Case No. 76 of 2008 and the decree in Kisumu CMCC Land Case No. 9 of 2008. The Defendants contended that their then counsel lacked instructions to compromise the suit and that the consent was procured through collusion and fraud. The Plaintiff opposed, denying any collusion or fraud. The court framed three issues: whether the consent was entered through collusion or fraud; whether the Defendants' counsel had authority to enter it; and costs. Applying the principles in Kenya Commercial Bank Ltd v Specialized Engineering Co. Ltd, as approved by the Court of Appeal in Board of Trustees NSSF v Michael Mwalo, the court held that consent orders are binding and can only be set aside on proof of fraud, collusion, misapprehension of material facts or like grounds. It found no evidence of collusion or fraud, and held that a duly instructed advocate has implied general authority to compromise, with no limitation of authority communicated to the Plaintiff. The claim that counsel lacked a practising certificate was rejected as an afterthought, the Defendants having instructed him throughout; their remedy, if any, lay in damages against counsel. The motion was dismissed with costs to the Plaintiff.

Key legal issues

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01

Whether the consent judgment was procured through collusion or fraud

Holding

No evidence of collusion, fraud, misapprehension or mistake was demonstrated by the Defendants.

Reasoning

The court reviewed the affidavit evidence and grounds on the motion and found nothing to substantiate the allegations of collusion or fraud in the recording of the consent. Mere assertion was insufficient; the burden lay on the Defendants seeking to set aside the consent to prove fraud or collusion, and they failed to discharge it.

p. 3
02

Whether the Defendants' counsel had authority to enter the consent

Holding

Counsel, having been duly instructed, had implied general authority to compromise the suit, and no limitation of that authority was communicated to the Plaintiff.

Reasoning

The Defendants admitted instructing the counsel who entered appearance and filed the defence. There was no evidence of any limitation on instructions, nor communication of any limitation to the Plaintiff. The late claim that counsel lacked a practising certificate was rejected as strange since the Defendants themselves instructed him, and any remedy lies in damages against counsel, not in disowning the consent.

p. 2

Legal principles established

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  • A consent order entered into by counsel is binding on all parties and cannot be set aside unless fraud, collusion, agreement contrary to the policy of the court, misapprehension of material facts, or other ground for setting aside an agreement is proved
  • A duly instructed advocate has implied general authority to compromise and settle the action, and a client cannot rely on a limitation of that authority unless it was brought to the notice of the other side

Court orders

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  1. 1.The Defendants' notice of motion dated 19th March 2018 is dismissed
  2. 2.Costs of the application to the Plaintiff

Authorities

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Legislation

  • Law Society of Kenya (practising certificate requirement)not specified

Cases cited (2)

  • Kenya Commercial Bank Ltd vs Specialized Engineering Co. Ltd
    [1982] KLR 485
  • Board of Trustees National Social Security Fund vs Micheal Mwalo
    [2015] eKLR
Jurisdiction invoked
Original jurisdiction of the High Court, Environment and Land Division (suit commenced by plaint dated 25th July 2012)

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, "Churchil Omollo Bodo v Lukio Otieno & another [2019] KEELC 4489 (KLR)", Case Analysis (2019). ELC Number 21 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4489/eng@2019-02-27

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