Naftali Nduati Mwangi & another v Duncan Kionga [2021] KEELC 2718 (KLR)
The bottom line
#Kenyan court refuses to undo a settlement: unless you can prove fraud or collusion, a consent order your lawyer signed will bind you.
What this practically means
#Executive summary
#Key legal issues
#Whether the consent order of 20/3/2018 withdrawing the suit could be set aside
No. The Applicants failed to prove fraud, collusion, misrepresentation or non-disclosure of material facts; the record showed the 1st Applicant was present and testified, and the reasons for the withdrawal were explained by the former Advocate.
A consent order binds like a judgment and can only be impeached on grounds such as fraud, collusion or non-disclosure of material facts. The Applicants' case was mere denial of instructions to withdraw. The email correspondence (NNW2b) confirmed the Applicant knew of the withdrawal and its reasons, which aligned with the failed adjournment bid on 13/12/2017. Blaming Counsel without evidence of fraud cannot avail a litigant.
Whether leave should issue for new Advocates to come on record under Order 9 Rule 9
Yes, prayer was unopposed and properly brought under Order 9 Rule 9, and was allowed.
Order 9 Rule 9 requires a change of Advocate after judgment to be effected by court order with notice to all parties or by consent between outgoing and incoming Advocates. The application rightly invoked this provision and the Respondent did not oppose the prayer, so leave was granted.
Whether a temporary injunction should issue
The question was moot given dismissal of the application; the court declined to discuss it as the Applicants had not addressed it in submissions.
Having answered the second issue in the negative, the injunction prayer fell away. The court noted the Applicants did not submit on this prayer while the Respondent maintained he was the registered owner, and saw no reason to discuss the Giella criteria.
Legal principles established
#- 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 parties; it must be shown the consent was obtained by fraud, collusion or an agreement contrary to the policy of the court
- A duly instructed Advocate has implied general authority to compromise and settle an action, and the client cannot rely on a private limitation of that authority unless it was brought to the notice of the other side
- Clients will not always be protected merely by blaming their Advocates; in appropriate situations litigants must bear the brunt of their Advocates' mistakes, though they may pursue the Advocates individually
Court orders
#- 1.Prayer 2 allowed: Messrs Mugeria, Lempaa & Kariuki Advocates granted leave to come on record for the Plaintiffs/Applicants
- 2.Application dismissed with costs in favour of the Respondent (prayers for temporary injunction, and review/setting aside of the 20/3/2018 consent order refused)
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act; Order 9 Rule 9 and Order 12 Rule 7 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Naftali Nduati Mwangi & another v Duncan Kionga [2021] KEELC 2718 (KLR)", Case Analysis (2021). Not stated in the judgment (suit concerning MAKUYU/MAKUYU/BLOCK 1/5475 and 5476). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2718/eng@2021-06-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.