Kitale Industries v Attorney General & County Government of Trans-Nzoia [2020] KEELC 2195 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the withdrawal order of 19/7/2018 amounted to a consent order
It was a consent order under Order 25 rule 2(1) even though no written consent was filed, because the parties consented in open court
The suit had been set down for hearing, so Order 25(2)(1) applied, requiring written consent signed by all parties. Although no formal written consent was filed, all counsel on record consented in open court to the withdrawal. The court held that equity deems as done that which ought to have been done, so the consent of the other parties was deemed as effective as a formal written consent. No intimation of withdrawal preceded the proceedings, but the defendants conceded.
Whether the legal threshold for setting aside the consent order was met
The threshold was not met; no fraud, collusion or agreement contrary to the policy of court was alleged, and the claim of misapprehension was unproved
The plaintiff alleged that its director understood withdrawal to mean shelving of the hearing and that erstwhile advocates never informed it of what transpired on 19/7/2018. The court found the allegation of lack of information to be negative and unproved by empirical evidence. The letter of 12/7/2018 actually instructed withdrawal. A company cannot rely on unattributed oral legal advice, and the paucity of exhibited communications undermined the claim.
Whether Order 45 rule 1 (review) was applicable to set aside a consent order
The court disposed of the matter on the consent-order threshold without finding it necessary to apply Order 45, effectively treating the application as one to set aside a consent order
The 1st defendant argued the application sought to set aside a consent order by the back door through review. The court framed the second issue as whether Order 45 rule 1 applied if the withdrawal was a consent order, but having found the consent-order threshold unmet, dismissed the application, rendering the review question academic.
Legal principles established
#- A consent order made in the presence and with the consent of counsel is binding on all parties and can only be set aside on grounds which would justify setting aside a contract
- A duly instructed advocate has implied general authority to compromise and settle the action
- A consent to withdrawal of a suit set down for hearing need not be in writing where circumstances require expedition; consent given in open court is as effective as a formal written consent
Court orders
#- 1.The application dated 1/11/2019 is dismissed
- 2.Costs of the application to the defendants
- Jurisdiction invoked
- Article 50 and 159 of the Constitution; Sections 1A(1), 3, 3A, 63(c) of the Civil Procedure Act; Order 45(1)(b) and 51(1) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Monicah Akulo Ouma & another v Chebuswa Limited[2022] KEELC 4864 (KLR)20 Sept 2022
- Fitina Runya & 3 others v David Muchiri Mugo & another [2022] KEELC 1623 (KLR)[2022] KEELC 1623 (KLR)20 Jan 2022applied
- Bundotich Kimulgul & 29 others v Kenya Forest Service & 2 others [2021] KEELC 2885 (KLR)[2021] KEELC 2885 (KLR)16 Jun 2021
Cite this brief
#Cite this brief
Caselaw, "Kitale Industries v Attorney General & County Government of Trans-Nzoia [2020] KEELC 2195 (KLR)", Case Analysis (2020). ELC Case of Kitale Municipality Block 4/114 (suit by plaintiff Kitane Industries; application dated 1/11/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2195/eng@2020-05-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.