Andrew Shimbiro v Sammy Talam [2021] KEELC 4331 (KLR)
The bottom line
#A Kenyan court refused to undo a settlement order the parties had agreed to, ruling that agreed court orders are binding unless fraud or collusion is proven.
What this practically means
#Executive summary
#Key legal issues
#Whether the consent order of 8/11/2017 could be reviewed or set aside
It could not; no ground of fraud, collusion, misapprehension or material non-disclosure was established, and the order remains binding.
The court found the order of 8/11/2017 was a consent order dictated by Mr. Chebii and assented to by Mr. Ambutsi. Applying the principles in Brooke Bond Liebig v Mallya and Hirani v Kassam, such an order binds the parties and may only be interfered with on limited grounds. The applicant demonstrated none. Separately, the two-year-four-month delay was inordinate and defeated the remedy under laches.
Whether the applicant should be spared the defendant's costs because the suit was withdrawn before hearing and the court file had earlier gone missing
No; entitlement to costs does not depend on the suit being heard, and the applicant's remedy is to await the taxing master.
The court held that unless discretion is exercised otherwise, a party is entitled to costs whether a suit is opposed or not, and the Advocates Remuneration Order caters for costs in both defended and undefended matters and matters withdrawn by consent. The applicant's grievance over costs exceeding the land's value and over the misplaced file could be placed before the taxing master, who should take account of all the circumstances.
Whether the delay in lodging the application should be condoned
The delay of approximately two years and four months was inordinate and the application was barred by laches.
Relying on Benjoh Amalgamated v Kenya Commercial Bank and the Lindsay Petroleum doctrine of laches, the court held that lapse of time and delay are material where the delay would be practically unjust. The order of 8/11/2017 had granted the respondent accrued rights to costs, creating a legitimate expectation, and the applicant's delay defeated equitable relief.
Legal principles established
#- A consent order recorded in the presence and with the consent of counsel is binding and can only be varied or discharged on grounds such as fraud, collusion, an agreement contrary to the policy of the court, or consent given in misapprehension or ignorance of material facts.
- A party is entitled to costs whether or not the suit was heard or defended; the fact that a suit was withdrawn before hearing does not displace that entitlement, which falls to be assessed by the taxing master.
- Inordinate delay in seeking discretionary relief bars the remedy under the doctrine of laches; equity aids the vigilant, not the indolent.
Court orders
#- 1.The applicant's application dated 24/2/2020 is dismissed
- 2.No orders as to costs
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Samson (Suing as the legal representative of the Estate of Samson Kabiri Kabitu) v Co-operative Bank of Kenya Ltd & 2 others[2023] KEELC 21555 (KLR)15 Nov 2023
- Republic v Cabinet Secretary for Land, Housing and Urban Development & 2 others Exparte Onesmus Kimanzi Musili & 2 others; Francis Nzeli Maundu (Interested Party) [2022] KEELC 1779 (KLR)[2022] KEELC 1779 (KLR)31 Jan 2022applied
Cite this brief
#Cite this brief
Caselaw, "Andrew Shimbiro v Sammy Talam [2021] KEELC 4331 (KLR)", Case Analysis (2021). Not stated in the judgment (application dated 24/2/2020, filed 25/2/2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4331/eng@2021-02-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.