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High CourtDismissed

Flora Wanjiru Kariuki (Plaintiff/Applicant) v (Defendant/Respondent)

High Court of Kenya
1 March 2010
AMA. O. Muchelule
1,097 words in judgment
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The bottom line

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Kenya's High Court refused to undo a settlement the applicant had voluntarily agreed to, confirming that consent orders bind parties unless fraud, collusion, or missing facts are proved.

What this practically means

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Executive summary

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The Plaintiff sued on 21st April 1997 to recover KShs. 426,000/= being purchase price and registration fees for 5 acres she declined to take, plus interest at 25% per annum and costs. By consent before Justice Ang'awa on 4th March 2008, the parties agreed that the Plaintiff would execute a transfer of Nginda/Samar Block 1/2122 and obtain Land Control Board consent, and that the Defendant would pay KShs. 461,000/= inclusive of costs, whereupon the suit would stand settled. On 23rd October 2009 the Applicant sought, by summons under sections 3, 3A and 63(e) and Order IXB rule 8, a stay and setting aside of the consent order, alleging misrepresentation of her instructions, absence of authority, and prejudice to her claims for interest, mesne profits and costs. Muchelule J held that the proper vehicle was Order XLIV rule 1(b), as Order IXB rule 8 concerns non-attendance while both parties attended; that the consent order was a judgment compromising the suit, not an interlocutory order for section 63(e); and that inherent powers under section 3A cannot override specific rules absent special circumstances or injustice. On the merits, both parties were present when the consent was recorded, counsel had authority to compromise, the application came 1½ years late without explanation, and the Applicant gave no particulars of her instructions or when she learned of the consent. The application was dismissed with costs to the Respondent.

Key legal issues

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01

Correct procedural route to set aside a consent order

Holding

The Applicant should have moved under Order XLIV rule 1(b); Order IXB rule 8 applies only to non-attendance, and both parties attended. Section 63(e) concerns interlocutory orders, whereas the consent order was a judgment compromising the suit. The application was incompetent.

Reasoning

The court held the consent order was a judgment ending the suit, not an interlocutory order. Order IXB rule 8 addresses consequences of non-attendance, but both parties and counsel were present. Review of a consent order lies under Order XLIV rule 1(b), and inherent jurisdiction cannot bypass specific rules without special circumstances.

p. 3
02

Whether the consent was entered without the Applicant's authority or misrepresented her instructions

Holding

The consent was prima facie binding; the Applicant was present at its recording, gave no details of her instructions, gave no explanation for the 1½-year delay, and did not allege illiteracy; she was attempting to resile from a voluntary consent.

Reasoning

Advocates had full authority to compromise the suit. The Respondent swore both parties were present and consulted before the consent was recorded, which was not controverted. The Applicant did not quantify her instructions, say when she learned of the consent, or explain the delay in filing. Following Wasiki v Wamboko and Diamond Trust, the burden of invalidity was not discharged.

p. 3

Legal principles established

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  • A consent order entered by advocates with authority is prima facie binding and can only be varied or discharged on grounds such as fraud, collusion, agreement contrary to public policy, or misapprehension/ignorance of material facts.
  • The burden on a party alleging that there was no consent or that the consent was invalid is a heavy one.
  • An application to set aside a consent order ought to be brought under Order XLIV rule 1(b), not Order IXB rule 8 which deals with non-attendance; inherent powers under section 3A cannot override other rules absent special circumstances or injustice.

Court orders

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  1. 1.The application to set aside the consent order is dismissed
  2. 2.Costs of the application awarded to the Respondent
Jurisdiction invoked
Sections 3, 3A and 63(e) of the Civil Procedure Act and Order IXB rule 8 of the Civil Procedure Rules

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, "Flora Wanjiru Kariuki (Plaintiff/Applicant) v (Defendant/Respondent)", Case Analysis (2010). . Source:

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