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ELCDismissedNot stated in the judgment as provided· [2020] KEELC 1758 (KLR)

Asset & Cargo Ltd v Housing Finance Kenya Ltd Muganda Wasulwa [2020] KEELC 1758 (KLR)

Environment and Land Court
7 July 2020
1,711 words in judgment
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The bottom line

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The Environment and Land Court in Mombasa refused to undo a consent judgment of over Kshs.25 million because no fraud, mistake or coercion was proved.

What this practically means

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Executive summary

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The court dealt with three motions: the plaintiff's applications dated 17th and 25th April 2019 seeking to review, vary or set aside a consent judgment adopted on 31st January 2019 and the consequent decree of Kshs.25,120,582.00, with a proposal to pay by deposit and monthly installments; and the defendants' application seeking discharge of ex-parte orders. The 1st defendant also raised a preliminary objection that pleadings filed by the plaintiff's new advocates, Messrs Bosire & Partners, were incompetent for non-compliance with Order 9 Rule 9 of the Civil Procedure Rules. The court overruled the preliminary objection, finding that the incoming firm had filed a consent from the outgoing advocate, Jackson Muchiri & Company Advocates, and a notice of change, thereby complying with Order 9 Rules 9 and 10. On the substantive issue, the court restated the settled law that a consent judgment has contractual effect and can only be set aside on grounds justifying rescission of a contract, such as fraud, collusion, misrepresentation, mistake or coercion, or where conditions remain unfulfilled. The court found the consent had been signed by advocates for both parties, contained no conditions, and was duly adopted; the plaintiff failed to prove misrepresentation, mistake, coercion, fraud or collusion, and letters allegedly requesting 180 days to pay were not shown to have been received by the outgoing advocate. The plaintiff's applications were dismissed with costs to the defendants. Judgment delivered at Mombasa on 7th July 2020.

Key legal issues

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01

Compliance with Order 9 Rules 9 and 10 of the Civil Procedure Rules

Holding

The preliminary objection failed because the incoming firm filed a consent from the outgoing advocate and a notice of change, complying with the mandatory procedure

Reasoning

Judgment had been entered by consent on 31st January 2019 when the plaintiff's advocate on record was Jackson Muchiri & Company Advocates. Bosire & Partners filed a motion on 18th April 2019 annexing a consent dated 17th April 2019 signed by both firms seeking to come on record, followed by a notice of change of advocate. The court found this satisfied the procedure in Order 9 rules 9 and 10, so the pleadings were not incompetent.

p. 2
02

Whether the consent judgment should be set aside

Holding

The plaintiff did not meet the threshold for setting aside the consent judgment; the application was dismissed

Reasoning

The consent dated 28th January 2019 was signed by advocates for both parties, adopted by the court on 31st January 2019, and contained no conditions remaining to be fulfilled. The plaintiff failed to prove misrepresentation, mistake, coercion, fraud or collusion; letters allegedly requesting 180 days were not shown to have been received by the outgoing advocate. Setting a consent judgment aside requires grounds justifying rescission of a contract, which were absent.

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, or where conditions remain to be fulfilled which are not carried out
  • A court will not interfere with a consent judgment except in circumstances such as would provide good ground for varying or rescinding a contract between the parties
  • Where a change of advocate follows the procedure in Order 9 Rules 9 and 10 of the Civil Procedure Rules, including filing a consent between outgoing and incoming advocates, the incoming firm is properly on record

Court orders

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  1. 1.The 1st defendant's notice of preliminary objection dated 6th September 2019 is overruled
  2. 2.The plaintiff's applications (Notice of Motion dated 17th April 2019, Notice of Motion dated 25th April 2019) are dismissed
  3. 3.Costs of the applications to the defendants

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesOrder 9 Rule 10

Cases cited (4)

  • Board of Trustees National Social Security Fund –v- Michael Mwalo
    (2015) eKLR
  • Brooke Bond Liebig (T) Ltd –v- Maliya
    (1995) EA 266
  • Flora Wasike –v- Destimore Wamboko
    (1988) KAR
  • Hiran –v- Kassam
    (1952) 19 EACA 131
Jurisdiction invoked
Original civil jurisdiction over the suit; applications under the Civil Procedure Rules including Order 9 Rules 9 and 10

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, "Asset & Cargo Ltd v Housing Finance Kenya Ltd Muganda Wasulwa [2020] KEELC 1758 (KLR)", Case Analysis (2020). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1758/eng@2020-07-07

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