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)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the factors vitiating the consent orders (fraud, collusion, misrepresentation, want of instructions) were proved
- 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
#Whether the consent on taxation could be set aside
The consent is binding and stands unless vitiated by fraud, collusion or misrepresentation, none of which was proved
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 Instructions to the then advocates on record were never shown to have been withdrawn, and the 4th Defendant had already performed the consent order.
Legal principles established
#- 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
#- 1.The Chamber Summons dated 14th December, 2023 is dismissed
- 2.Costs of the application awarded to the Plaintiff and the 4th Defendant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
Costs
Application dismissed with costs to the Plaintiff and the 4th Defendant
Quotable passages
#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.
The court finds that the application lacks merit and hereby dismisses it with costs to the Plaintifi and the 4th Defendant.
Some of the parties, particularly the 4th Defendant, have already complied with the consent order and paid their portion of the costs.
Issues in the judgment
#Inconsistent dates in the Chamber Summons grounds (application dated 24th August, 2001 vs 2023) and in submissions (24th August, 2021 vs 2023)
Citation of Wasike given variously as [1988]eKLR and [1982 -88] 1 KA
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.