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ELCDismissednot stated in the extract· [2024] KEELC 361 (KLR)

Chepkaitany v Kaimugul (Enviromental and Land Originating Summons 9 of 2021) [2024] KEELC 361 (KLR)

Environment and Land Court
23 January 2024
JOJ.M. Onyango
1,735 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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The Eldoret Environment and Land Court refused to undo a land settlement the defendant had signed off on, warning that consent orders are as binding as contracts.

What this practically means

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Executive summary

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The Defendant/Applicant filed a Notice of Motion dated 7th June 2023 seeking leave for the firm of Warigi & Co Advocates to come on record, setting aside of a consent order dated 21st December 2021 together with consequential orders, and a stay of execution of the decree issued on 25th October 2022. He contended that he never authorised the firm of J.K Birir & Company Advocates to execute a consent admitting the Plaintiff's claim, alleging the consent was fraudulently obtained without his authority or knowledge, and that the Respondent took advantage of his low literacy level. The Plaintiff opposed, producing a letter of instructions signed by the Applicant instructing settlement, and documents supplied by J.K Birir & Co Advocates. The court identified the key issue as whether the Applicant had satisfied the criteria for setting aside a consent order or judgment. Surveying the authorities - including Flora N. Wasike v Destimo Wamboko, Kenya Commercial Bank Ltd v Specialized Engineering Co Ltd, S M N v S M S, and the Ugandan case of Lenina Kemigisha Mbabazi Star Fish Ltd - the court reiterated that a consent order is contractual in effect, binding on the parties, and may only be set aside on grounds of fraud, collusion, agreement contrary to public policy, or where consent was given without sufficient material facts; that a duly instructed advocate has implied general authority to compromise; and that a private limitation of that authority does not avail the client unless communicated to the other side. The court found it undisputed that the Applicant gave written instructions to settle and implemented the consent by signing Land Control Board and transfer documents. His claim of being duped by his sons was dismissed as a belated afterthought lacking credibility. The application was dismissed with costs to the Respondent.

Key legal issues

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Whether the consent order dated 21st December 2021 should be set aside

Holding

No - the Applicant gave written instructions to settle, and the alleged fraud was not credible

Reasoning

The court found that the Applicant gave his former advocates written instructions to settle the case and subsequently handed over documents to implement the consent order, including signing the Land Control Board application, transfer forms and furnishing identification documents. His claim that his sons duped him into signing the letter of instructions was characterised as belated, an afterthought and not credible. Fraud must be specifically proved and cannot be inferred. The consent order therefore stands with contractual effect.

p. 4

Legal principles established

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  • A consent order entered into by counsel is binding and can only be set aside on proof of fraud, collusion, agreement contrary to public policy, or where consent was given without sufficient material facts or in misapprehension of them.
  • 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 other side's notice.
  • A court will not interfere with a consent judgment except in circumstances that would justify setting aside a contract between the parties.

Court orders

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  1. 1.The application dated 7th June 2023 is dismissed
  2. 2.Costs of the application awarded to the Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 Rule 6
  • Civil Procedure RulesOrder 9 Rule 9

Cases cited (9)

  • Elizabeth K. Ndolo v George M. Ndolo
    (1996) eKLR
  • Vijay Morjaria v Nasingh Madhusingh Darbar & Another
    (2000) eKLR
  • Flora N. Wasike v Destimo Wamboko
    (1988) eKLR
  • Kenya Commercial Bank Ltd v Specialized Engineering C Ltd
    (1982) KLR 485
  • S M N v S M S & 3 others
    (2017) eKLR
  • Kenya Commercial Bank Limited vs Benjoh Amalgamated Limited & Another
    [1998] eKLR
  • Lenina Kemigisha Mbabazi Star Fish Ltd
  • Board of Trustees National Social Security Fund v Michael Mwalo
    (2015) eKLR
  • Samuel Mbugua Ikumbu v Barclays Bank of Kenya Limited
    (2015) eKLR
Jurisdiction invoked
Inherent jurisdiction to set aside consent orders; Civil Procedure Rules Order 9 Rules 6 and 9

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, "Chepkaitany v Kaimugul (Enviromental and Land Originating Summons 9 of 2021) [2024] KEELC 361 (KLR)", Case Analysis (2024). not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/361/eng@2024-01-23

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