Protus Hamisi Wambada & another v Eldoret Hospital [2020] KEELC 2294 (KLR)
The bottom line
#A Kenyan court set aside a land consent order recorded without the defendant's participation or genuine signature, showing consent orders can be undone when fraudulently obtained.
What this practically means
#Executive summary
#Key legal issues
#Whether the consent order of 20th November 2017 should be set aside
Yes - set aside. The defendant was absent, disowned her signature as a forgery, there was no written agreement signed by the parties, and the consent was therefore not lawfully obtained.
The court perused the record and found the defendant was not present when the consent was recorded; the written consent bore a signature she disowned as a forgery, to which the court gave her the benefit of doubt. Relying on Hirani v Kassam, Brooke Bond Liebig and Gurpreet Singh, the court held a compromise must be in writing and signed by the parties; the omission made the consent unsuitable to stand. The court rejected the interested party's claim that counsel holding brief was misled, finding negligence rather than mistake, but the defendant's absence and disavowal sufficed.
Whether the consent recording was attributable to mistake of the advocate holding brief
No - counsel holding brief for the interested party was in court and did not object; this was negligence of counsel, not a mistake that would justify setting aside on that ground.
The court held that counsel holding brief had the opportunity to object or seek adjournment and failed to do so, characterising the failure as negligence rather than a mistake of counsel. It criticised the practice of counsel accepting briefs without full instructions. However, this finding did not defeat the application because the defendant's absence and forged signature independently justified setting aside the consent.
Whether CMCC No. 150 of 2019 should be transferred to the ELC
Yes - transferred and consolidated, as the suit land is the common subject matter and consolidation would effectually determine the issues once and for all.
Under Section 18 of the Civil Procedure Act the High Court (and this court) may withdraw a suit pending in a subordinate court. The plaint in the lower court suit revealed the same land was in issue. Applying the Hanzhou Agrochemicals factors, the court found transfer and consolidation prudent to avoid parallel proceedings over the same subject matter.
Whether the two-year delay in filing the application defeated it
No - the orders were granted despite the unexplained delay, but the applicant was penalised in costs.
The plaintiff argued inordinate and unexplained delay of over two years since the order of 21st November 2017. The court acknowledged that counsel gave no reason for the delay but nonetheless granted the orders as prayed, compensating the plaintiff by awarding costs of the application against the applicant.
Legal principles established
#- 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 cannot be set aside or varied unless obtained by fraud, collusion, an agreement contrary to public policy, or without sufficient material facts.
- A suit cannot be compromised by consent without a written agreement signed by the parties.
Court orders
#- 1.The consent order dated 20th November 2017 executed between the Plaintiff and the Defendant and adopted as an order of the court is set aside together with all consequential orders
- 2.Eldoret E&L CMCC No. 150 of 2019 is transferred to this court and consolidated with this file for hearing and determination
- 3.The applicant to pay costs of the application to the plaintiff
- Jurisdiction invoked
- Section 18 of the Civil Procedure Act (transfer/withdrawal of suit from subordinate court); inherent jurisdiction to review/set aside consent order
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Denooyer & another v Ancilloto (Environment and Land Case E011 of 2022) [2025] KEELC 4061 (KLR)[2025] KEELC 4061 (KLR)28 May 2025applied
Cite this brief
#Cite this brief
Caselaw, "Protus Hamisi Wambada & another v Eldoret Hospital [2020] KEELC 2294 (KLR)", Case Analysis (2020). Not stated in the judgment (Eldoret E&L case; related: Eldoret E&L CMCC No. 150 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2294/eng@2020-05-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.