Susan Jane Shah & another v Kenya Commercial Bank Ltd & 3 others
The bottom line
#The High Court refused to undo a 2002 settlement, confirming that consent orders are binding contracts that can only be set aside for fraud or similar serious grounds.
What this practically means
#Executive summary
#Key legal issues
#Authority of advocate to compromise suit
The 2nd plaintiff authorized A. N. Ngunjiri & Co. Advocates to act and the firm had full instructions when the consent was recorded; her forgery allegation against a letter of 9th November 2001 was unsupported
The court evaluated the letter of 9th November 2001 and found it authorized the firm. The 2nd plaintiff's forgery allegation was untested: she could easily have obtained a document examiner's report but did not. Her conduct, including multiple suits against the bank, showed awareness of the consent over six years.
Review of consent order
The court could not review the consent order: consent orders have contractual effect and none of the recognized grounds (fraud, collusion, misapprehension of material facts) was established; delay of over six years also disentitled the applicant
Applying Wasike and Hirani, the consent could only be set aside on grounds justifying setting aside a contract. Fraud allegations against the firm failed on the facts. The late husband conducted the suit, and the application was brought only after his death, after inordinate delay, showing indolence.
Advocate improperly on record
O. P. Ngoge & Associates came on record without leave after judgment had been entered, rendering the application incompetent
The consent order terminated the proceedings, so any new advocate wishing to come on record for the 2nd plaintiff required leave under Order III rule 9A. Ngoge's firm did not seek leave and is improperly on record, so the application it filed is incompetent.
Legal principles established
#- A consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting aside a contract
- An order made in the presence and with the consent of counsel is binding and cannot be varied or discharged unless obtained by fraud, collusion, or in misapprehension of material facts
- An advocate who wishes to come on record for a party after judgment must first seek leave of the court under Order III rule 9A; failing which the application filed is incompetent
Court orders
#- 1.The notice of motion dated 6th June 2008 made purportedly on behalf of the 2nd plaintiff is dismissed
- 2.Costs of the application to the respondents
- Jurisdiction invoked
- Sections 3A and 80 of the Civil Procedure Act and Order I Rule 10 and Order XLIV of the Civil Procedure Rules (application for review)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Susan Jane Shah & another v Kenya Commercial Bank Ltd & 3 others", Case Analysis (2009). Not stated in the extract (Notice of Motion dated 6th June 2008 in HCCC over LR No.1870/VIII/15 Spring Valley, Nairobi). Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.