Christine Atieno Opiyo v Michelle Anyango & another [2018] KEELRC 2434 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether a consent order can be set aside on the ground that counsel mistakenly gave wrong instructions
The application fails; no evidence of mistake, fraud or misrepresentation was tendered, and the consent was lawfully founded on the limited grant of letters of administration
The court applied the settled test in Flora N. Wasike v Destimo Wamboko that a consent judgment may be set aside only on grounds justifying setting aside a contract, such as fraud, mistake or misrepresentation. The 1st Respondent's affidavit asserted lack of instructions, but no affidavit was sworn by the advocate who consented. The consent was in fact anchored on the limited grant issued in the succession cause, without which substitution could not have been granted. The application was therefore dilatory and an attempt to frustrate the deceased's beneficiaries.
Whether substitution of a deceased plaintiff by her beneficiaries was properly granted by consent
The substitution was properly granted on the basis of the limited grant of letters of administration issued to the two daughters
The consent of 8th September 2016 was entered by both advocates and was founded on the Letters of Administration (Limited Grant) issued in the succession cause, which was before the court. Without that grant the court would not have allowed substitution. The applicant's opposition that the suit had taken too long was held to be a dilatory tactic meant to frustrate the beneficiaries of the deceased plaintiff.
Legal principles established
#- A consent judgment can only be set aside on the same grounds as would justify the setting aside of a contract, such as fraud, mistake or misrepresentation
- An allegation of mistake by counsel must be supported by evidence, including an affidavit from the advocate concerned
Court orders
#- 1.The application to set aside the consent order is dismissed with costs
- 2.The suit to be heard on merits on priority basis, it being a 2012 matter
- 3.The matter to be placed before the Principal Judge Employment & Labour Relations Court for allocation of a hearing date
- Jurisdiction invoked
- Inherent jurisdiction of the court over its own consent orders in a suit before it (not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Christine Atieno Opiyo v Michelle Anyango & another [2018] KEELRC 2434 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2434/eng@2018-02-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.