Hathinge Self Help Group (with a membership of 293 members and suing through the registered officials) & 3 others v Co-operative Bank Housing Cooperative Society Ltd
The bottom line
#A Machakos court cancelled a land settlement made by a lawyer who had no instructions from the 293-member group he claimed to represent.
What this practically means
#Executive summary
#Key legal issues
#Whether the firm of Swan Advocates had a retainer/instructions from the Plaintiffs to record the consent
No retainer or instructions existed; the firm acted without authority from the Plaintiffs
The court applied the definition of retainer from Black's Law Dictionary and Omulele & Tollo, holding a retainer may be implied from conduct but requires evidence. Swan Advocates filed no evidence of written instructions or conduct-based retainer. The self help group, with 293 members, is distinct from Harrison Mutunga Wambua, whose personal instructions could not bind the group.
Whether the consent dated November 5, 2021 was procured by fraud and collusion
Yes; the consent was procured by fraud and collusion and was set aside
Harrison Mutunga Wambua admitted he did not file the suit and alleged his signature was forged, yet instructed Swan Advocates to compromise it. A stranger to a suit cannot compromise a suit affecting over 200 members of a self help group. This demonstrated collusion between Wambua, Swan Advocates and the Defendant.
Legal principles established
#- A consent order will only be set aside if procured through fraud, non-disclosure of material facts, mistake or a reason which would enable a court to set it aside
- A retainer need not be written; it may be oral or inferred from conduct, but where a client contradicts the advocate's claim of retainer and no evidence exists, the advocate is treated as acting without authority
- Consents entered by counsel bind clients unless fraud, collusion, absence of consensus, public policy or other grounds for setting aside are shown
Court orders
#- 1.The consent orders dated November 5, 2021 and the subsequent decree dated November 16, 2021 be and are hereby set aside
- 2.Costs of the application to the Plaintiffs/Applicants
- Jurisdiction invoked
- Inherent powers of the Environment and Land Court to set aside consent orders in a suit before it (Environment and Land Court Act; Civil Procedure Act framework)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hathinge Self Help Group (with a membership of 293 members and suing through the registered officials) & 3 others v Co-operative Bank Housing Cooperative Society Ltd", Case Analysis (2022). Enviromental and Land Originating Summons E001 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/4853/eng@2022-09-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.