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ELCDismissedEnvironment and Land Appeal 8 of 2023· [2023] KEELC 20196 (KLR)

Owuor (Suing as the legal administrator of the Estate of Ishmael Owuor Molo - Deceased) v Oleche

Environment and Land Court at Siaya
28 September 2023
2,698 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed that once you comply with a consent order, you cannot later undo it by claiming your lawyer made a mistake.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Siaya (Koross, J) against a ruling of Hon. J. P. Nandi, PM, delivered on 16/02/2023 in Bondo ELC Case No. E052 of 2022, dismissing the appellant's motion to set aside a consent order recorded on 08/12/2022 permitting burial of Francis Otieno Odola (deceased) on parcel Siaya/Memba/2803. The appellant argued counsel Martha Mukoya lacked instructions and a practising certificate, and that the consent offended Section 3(3) of the Law of Contract Act and Order 25 Rule 5 of the Civil Procedure Rules. The court held that new issues raised for the first time at submissions stage and on appeal could not be entertained absent leave, citing Kenya Hotels Ltd v Oriental Commercial Bank. On the sole condensed issue - whether the trial court erred in refusing to set aside the consent - the court applied Brooke Bond Liebig v Mallya and Intercountries Importers, holding a consent order may only be set aside on grounds vitiating a contract. The appellant bore the onus of proving mistake and failed; counsel had always been on record with implied and ostensible authority (Specialized Engineering v KCB), and both parties had complied with the consent, the appellant having amended his plaint. The appeal was dismissed with costs to the respondent, and the partly-heard suit was directed to proceed at Bondo Law Courts.

Key legal issues

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01

Whether the trial court erred in refusing to set aside the consent order

Holding

The trial court did not err; the appellant failed to prove mistake or lack of instructions, and both parties had complied with the consent

Reasoning

The principles for setting aside consent orders are settled: only grounds vitiating a contract (fraud, collusion, mistake, etc.) suffice. The appellant bore the onus of proving mistake by tendering the express instructions and showing the consent differed, which he did not. Counsel had always been on record, and the appellant amended his plaint and complied with the consent, making it preposterous to seek to set it aside after performance.

p. 5
02

Whether new issues raised at submissions stage and on appeal are permissible

Holding

No; issues not pleaded or canvassed before the trial court cannot be introduced on appeal without leave

Reasoning

Submissions are merely arguments and must be founded on issues before the court. The appellant raised counsel's admission status and statutory objections (Section 3(3) Law of Contract Act, Order 25 Rule 5) for the first time on appeal without seeking leave to adduce new evidence; those grounds were rejected.

p. 4
03

Whether counsel had authority to record the consent

Holding

Counsel had instructions to compromise the suit, with implied and ostensible authority

Reasoning

Relying on Specialized Engineering Company Ltd v Kenya Commercial Bank Ltd, the court found counsel had always been on record for the appellant, was privy to the case, never held another counsel's brief, and no evidence showed she acted in error; she had both implied and ostensible general authority to bind the client in effecting the compromise.

p. 6

Legal principles established

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  • A consent order may only be set aside on grounds that would vitiate a contract, such as fraud, collusion, illegality, mistake or absence of sufficient material facts
  • A party cannot change its case at the submissions stage or raise new issues on appeal that were not canvassed before the trial court
  • The party alleging mistake in a consent order bears the onus of proving it

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The respondent is awarded costs of the appeal, to be borne by the appellant
  3. 3.The suit, though partly heard, to proceed to conclusion at Bondo Law Courts for expeditious disposal

Authorities

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Legislation

  • Law of Contract ActSection 3(3)
  • Civil Procedure RulesOrder 25 Rule 5(1)
  • Civil Procedure ActSection 80
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (11)

  • Intercountries Importers and Exporters Limited v Teleposta Pension Scheme Registered Trustees and 5 others
    [2019] eKLR

    Definition of mistake and principles for setting aside consent orders

  • Brooke Bond Liebig v Mallya
    (1975) EA 266

    Consent judgment set aside only on fraud, collusion, no consensus, public policy or contract-vitiating grounds

  • Flora N. Wasike v Destimo Wamboko
    [1988] eKLR

    Consent orders binding and not dischargeable unless obtained by fraud or collusion

  • Protus Hamisi Wambada & another v Eldoret Hospital
    [2020] eKLR

    Omission of written agreement may justify setting aside consent not meeting contract threshold

  • Bakari Shaban Gakere vs Mwana Idd Guchu & 3 others
    [2022] eKLR

    Mistakes of counsel should not be visited on their clients

  • Eliud Kingwara Adawo vs Philip Achieng John and another
    [2015] eKLR

    Relied on by respondent on compliance with consent order

  • United India Insurance Co. Ltd v East African Underwriters (Kenya) Ltd
    (1985) EA 898

    Duty of first appellate court to re-evaluate evidence

  • Kenya Hotels Ltd v Oriental Commercial Bank Ltd (Formerly known as The Delphis Bank Limited)
    [2019] eKLR

    Submissions must be founded on issues before the court; no new issues at submissions stage

  • Republic V. Tribunal of Inquiry to Investigate the Conduct of Tom Mbaluto & others Ex-Parte Tom Mbaluto
    [2018] eKLR

    Party cannot change the nature of its case at submissions stage

  • North Staffordshire Railway Co. V. Edge
    [1920] AC 254

    Appellate courts restricted to issues canvassed before the trial court

  • Specialized Engineering Company Ltd v Kenya Commercial Bank Ltd
    [1988] eKLR

    Advocate's implied and ostensible general authority to bind client in compromise

On appeal from
Bondo Law Courts (Principal Magistrate's Court)
Bondo ELC Case Number E052 of 2022
Jurisdiction invoked
First appellate jurisdiction over the trial court's ruling (Environment and Land Court Act); Article 159(2)(d) of the Constitution invoked on technical justice

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, "Owuor (Suing as the legal administrator of the Estate of Ishmael Owuor Molo - Deceased) v Oleche", Case Analysis (2023). Environment and Land Appeal 8 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20196/eng@2023-09-28

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