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ELCDismissedNotice of Motion dated 18th January 2021 (Malindi)· [2021] KEELC 3523 (KLR)

Kilonzo & Azizi Company Advocates v County Government of Kilifi [2021] KEELC 3523 (KLR)

Environment and Land Court? Not stated; High Court, Malindi
30 April 2021
JOJ. O. Olola
2,458 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to undo a Kshs 31 million legal fee settlement, holding a government's internal limits on its lawyer don't bind the other side.

What this practically means

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Executive summary

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The County Government of Kilifi moved the Court by Notice of Motion dated 18th January 2021 seeking to set aside a Certificate of Taxation dated 2nd November 2020 for Kshs 31,000,000/- issued on the Respondent advocates' Advocate-Client Bill of Costs (initially Kshs 35,073,905/-) arising from Malindi High Court Petition No. 5 of 2011, Merry Beach Ltd v The Attorney General & 18 Others, and to have the bill remitted for taxation. The Applicant, through its County Attorney Michelle Bibi Fondo, contended that the consent taxing the bill was recorded by its internal counsel, Ms Rehema Wasi, without instructions, authority or the prior written approval of the County Attorney, and was therefore fraudulent and void ab initio. The Respondent opposed, asserting the counsel on record had express and ostensible authority, and that the consent taxed off Kshs 4 Million. The court applied the settled principles in Brooke Bond Liebig v Mallya and Flora N. Wasike v Destimo Wamboko that consent judgments have contractual effect and can only be set aside for fraud, collusion, non-disclosure, mistake or public policy. It held that counsel who had filed a Memorandum of Appearance had implied general authority to compromise, that internal limitations on that authority bind third parties only if communicated, and that the allegation of fraud was never proved. Relying also on National Bank of Kenya v Otieno Ragot, the court found no merit in the motion, dismissed it with costs to the Respondent.

Key legal issues

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01

Whether lack of instructions from the County Attorney rendered the consent fraudulent or void

Holding

No. Counsel on record had implied general and ostensible authority to compromise; no fraud, coercion or collusion was proved

Reasoning

The court found Ms Rehema Wasi was properly on record having filed a Memorandum of Appearance for the Applicant. There was no allegation of fraud or coercion against her, and she filed no affidavit claiming she was misled. Internal limitations on counsel's authority are ineffective unless communicated to the other side; the burden of proving fraud was not discharged.

p. 3
02

Grounds for setting aside a consent judgment/order

Holding

A consent judgment has contractual effect and may only be set aside on grounds such as fraud, collusion, non-disclosure of material facts, mistake or public policy

Reasoning

Relying on Brooke Bond Liebig v Mallya and Flora N. Wasike v Destimo Wamboko, the court held that a consent order binds parties to proceedings and cannot be varied or discharged except on grounds that would justify setting aside a contract. None of those grounds was established here.

p. 3

Legal principles established

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  • A consent judgment can only be set aside on grounds of fraud, collusion, absence of consensus, public policy or reasons that would justify setting aside a contract
  • A duly instructed advocate has implied general authority to compromise and settle the action, and a client cannot rely on an internal limitation of that authority unless it was brought to the notice of the other side
  • A person dealing with counsel on record in good faith is entitled to assume internal authorisation formalities have been complied with
  • An allegation of fraud must be proved, not merely asserted

Court orders

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  1. 1.The Notice of Motion dated 18th January 2021 is dismissed
  2. 2.Costs of the application awarded to the Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 Rule 9
  • Advocates ActSection 51(2)

Cases cited (7)

  • Brooke Bond Liebig –vs- Mallya
    (1975) EA 266
  • Flora N. Wasike –vs- Destimo Wamboko
    (1988) eKLR
  • Kenya Commercial Bank Ltd –vs- Specialised Engineering Company Ltd
    (1982) KLR 485
  • Kuwinda Rurinja Company Ltd –vs- Andikuwinda Holdings Ltd & 13 Others
    (2019) eKLR
  • Stand 242 Hendrik Potgieter Road Ruimsig Pty –vs- Gobel (No 246/10)
    (2011) ZASCA 105
  • Mohoney –vs- East Holyford Mining Company
    (1875) LR 7HL 869
  • National Bank of Kenya Ltd –vs- Otieno Ragot & Company Advocates
    (2020) eKLR
Jurisdiction invoked
Inherent/civil procedure jurisdiction of the High Court to set aside a consent judgment/certificate of taxation (not expressly cited in judgment)

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, "Kilonzo & Azizi Company Advocates v County Government of Kilifi [2021] KEELC 3523 (KLR)", Case Analysis (2021). Notice of Motion dated 18th January 2021 (Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3523/eng@2021-04-30

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