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ELCDismissedMalindi ELC No. 8 of 2016· [2019] KEELC 4547 (KLR)

Abdalla Mohamed Issa v Christopher Mumba Kambi & 18 others [2019] KEELC 4547 (KLR)

Environment and Land Court
21 February 2019
JOJ. O. Olola
2,563 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that a settlement your lawyer agrees to in writing binds you, unless you can prove fraud or that the lawyer lacked authority.

What this practically means

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Executive summary

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The plaintiff sued 19 defendants over Portion No. 371 Malindi in January 2016. On 13th March 2018 the court adopted, by consent, orders recorded in a letter dated 19th February 2018: an injunction restraining further dealings with the suit property, the plaintiff to assume possession of vacant portions, and enforcement by the OCS Malindi. The defendants, through new advocates A.M. Omwancha & Company, applied by Notice of Motion dated 21st June 2018 for stay of the consent orders, summons to the advocate who held brief on 13th March 2018, a DCI investigation into an allegedly forged consent, a declaration that the consent order was null and void, and that the advocates involved be cited for contempt. They argued their former advocate, Mr. Nyakoe, never signed or participated in the consent and never instructed Mr. Abdulatif. Mr. Nyakoe swore an affidavit denying participation, having ceased to act on 6th March 2018. The plaintiff and his witnesses, including Mr. Ogeto who signed on Mr. Nyakoe's behalf, showed that Mr. Nyakoe's clerk initiated negotiations, Mr. Nyakoe was consulted by phone and demanded Kshs 100,000, and that he received Kshs 60,000 via M-Pesa around the time of the consent. The court applied Order 25 Rule 5 and Kenya Commercial Bank Ltd v Specialised Engineering Co Ltd, holding consent orders bind unless fraud, collusion or want of authority is proved. It found the former advocates participated and remained properly on record, found no fraud, and dismissed the application with costs to the plaintiff on 21st February 2019.

Key legal issues

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01

Validity of the consent order allegedly adopted without the defendants' advocate's participation

Holding

The consent order stands; the defendants' former advocates did participate in it and no fraud was proved

Reasoning

The court found that Mr. Nyakoe's clerk contacted the plaintiff to negotiate the consent, that Mr. Nyakoe was consulted by phone, that Mr. Ogeto signed on his behalf under his prior authority, and that Mr. Nyakoe received Kshs 60,000 from the plaintiff around the time of the consent. Earlier correspondence showed the firm was actively pursuing a settlement. The firm was still properly on record having filed no notice to cease acting.

p. 4
02

Grounds for setting aside a consent order

Holding

The applicable test is fraud, collusion, agreement contrary to the policy of the court, or consent given without sufficient material facts or in misapprehension

Reasoning

Relying on Order 25 Rule 5 of the Civil Procedure Rules and Kenya Commercial Bank Ltd v Specialised Engineering Co Ltd, the court held that a consent order once endorsed becomes an order of the court with contractual effect and binds unless the stringent grounds for setting aside are proved. The defendants did not discharge that burden.

p. 4

Legal principles established

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  • A consent order has contractual effect and can only be set aside on grounds that would justify setting aside a contract, including fraud, collusion, or agreement contrary to the policy of the court.
  • An advocate has general authority to compromise on behalf of his client absent an express negative direction.

Court orders

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  1. 1.The Defendants' Notice of Motion dated 21st June 2018 is dismissed
  2. 2.Costs of the application to the plaintiff

Authorities

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Legislation

  • Civil Procedure RulesOrder 25 Rule 5
  • Advocates Act

Cases cited (1)

  • Kenya Commercial Bank Ltd –vs- Specialised Engineering Company Ltd
    (1982) KLR
Jurisdiction invoked
Civil Procedure Rules, Order 25 Rule 5 (compromise of suits)

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, "Abdalla Mohamed Issa v Christopher Mumba Kambi & 18 others [2019] KEELC 4547 (KLR)", Case Analysis (2019). Malindi ELC No. 8 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4547/eng@2019-02-21

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