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ELCDismissedNot stated in judgment

Ogendo & another (Suing as the Personal Representative and Administrator of the Estate of Manason Ogendo Bodo - Deceased) v Abuto & 5 others (Environment & Land Case 23 of 2017) [2025] KEELC 4920 (KLR)

High Court of Kenya (sitting at Kisumu)
30 June 2025
1,448 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to undo a costs agreement signed by a party's lawyer, confirming consent orders bind unless fraud, collusion or misrepresentation is proven.

What this practically means

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Executive summary

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This ruling by E. Asati, J at Kisumu determines a Chamber Summons dated 14th December, 2023 by the 3rd Defendant seeking to set aside the ruling of the Deputy Registrar (Taxing Officer) of 30th November, 2023, which had dismissed the Applicant's application to set aside consent orders recording taxed costs. The consent compromised a bill of costs of Kshs.14,338,691 at Kshs.7,200,000, with the 3rd Defendant to pay Kshs.1,800,000. The Applicant alleged the consent was entered without its instructions, signed by a stranger on its former advocate's behalf, tainted by misrepresentation, collusion and fraud, and discriminatory under Article 27 in isolating it for costs while sparing the 2nd Defendant. The 4th Defendant opposed, noting it had already paid its share, and the Plaintiff argued the consent was entered by the Applicant's advocates on record who had authority, and that no evidence of collusion was produced. The court applied the Flora N. Wasike v Destimo Wamboko principle that a consent order made with the consent of Counsel is binding and can only be discharged for fraud, collusion or misrepresentation. Finding no evidence of want of instructions or of vitiation, and noting the 4th Defendant had already complied, the court held the factors vitiating the consent were not proved and dismissed the application with costs to the Plaintiff and the 4th Defendant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the factors vitiating the consent orders (fraud, collusion, misrepresentation, want of instructions) were proved
  2. 2.Whether the Deputy Registrar (Taxing Officer) erred in dismissing the Applicant's application dated 24th August, 2023 to set aside the consent on taxation

Key legal issues

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01

Whether the consent on taxation could be set aside

Holding

The consent is binding and stands unless vitiated by fraud, collusion or misrepresentation, none of which was proved

Reasoning

Relying on Flora N. Wasike v Destimo Wamboko, the court held that a consent order has contractual effect. The Applicant alleged the consent was entered without instructions, signed by a stranger, and tainted by misrepresentation and collusion, but produced no evidence. Instructions to the then advocates on record were never shown to have been withdrawn, and the 4th Defendant had already performed the consent order.

p. 4

Legal principles established

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  • A consent order entered in the presence and with the consent of Counsel is binding and cannot be discharged or varied unless obtained by fraud, collusion or misrepresentation

Court orders

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  1. 1.The Chamber Summons dated 14th December, 2023 is dismissed
  2. 2.Costs of the application awarded to the Plaintiff and the 4th Defendant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Deputy Registrar (Taxing Officer), High Court
Jurisdiction invoked
Reference from the decision of the Taxing Master under the Advocates Remuneration Order (Rule 11 referred to by parties)

Relief refused

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Setting aside/varying the ruling of the taxing officer of 30th November 2023 and allowing the application dated 24th August, 2023

No evidence that the consent was entered without instructions or participation; vitiating factors not proved; 4th Defendant had already complied

p. 4

Costs

Application dismissed with costs to the Plaintiff and the 4th Defendant

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

an order made in the presence and with the consent of Counsel is binding on and cannot be discharged or varied unless obtained by fraud, collusion or misrepresentation.
p. 4Binding effect of consent orders
The court finds that the application lacks merit and hereby dismisses it with costs to the Plaintifi and the 4th Defendant.
p. 4Disposition
Some of the parties, particularly the 4th Defendant, have already complied with the consent order and paid their portion of the costs.
p. 4Compliance with the consent order

Issues in the judgment

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minor

Inconsistent dates in the Chamber Summons grounds (application dated 24th August, 2001 vs 2023) and in submissions (24th August, 2021 vs 2023)

minor

Citation of Wasike given variously as [1988]eKLR and [1982 -88] 1 KA

minor

Counsel for the Plaintiff submits the application is not a proper reference under Rule 11 yet urges the court to allow the application

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, "Ogendo & another (Suing as the Personal Representative and Administrator of the Estate of Manason Ogendo Bodo - Deceased) v Abuto & 5 others (Environment & Land Case 23 of 2017) [2025] KEELC 4920 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4920/eng@2025-06-30

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