Mauwa & Company Advocates v Jared Ochor

6. In precis, the Respondent admits in his affidavit that he and one Nicholas Otieno instructed the Applicant to act for him in the above matter but added that the legal fees was paid to the Applicant through one Donald Cheluba, whom the Respondent stated he is pursuing for recovery. 7. The Respondent states on oath that the payment of the legal fees notwithstanding, he entered into a consent with the Applicant (annexture JO-3) to the effect that the amount payable to the Applicant as fees or taxed costs would be Ksh.90,000/- all-inclusive and that the he proceeded to pay Ksh.20,000/-, therefore leaving a balance of Ksh.70,000/-. 8. The Respondent states that he subsequently learnt that the Applicant was pursuing Nicholas Otieno for payment of legal fees, and had to that effect filed Misc Application No. E013 of 2024, yet the Respondent and Nicholas Otieno had jointly issued the same instructions to the Applicant. In his view, the Applicant should not be allowed to recover costs independently from the two instructing clients. He states that the Applicant is bound by the terms of the consent as being the full determination of the payment due from his two clients. 9. The Applicant filed a supplementary affidavit that Nixon Abira Advocate swore on 24th March, 2025 in which he stated that Donald Cheluba has never worked for the Applicant and therefore had no authority to collect fees from the Respondent on behalf of the Applicant. 10. The Advocate states further that the Respondent and Nicholas Otieno instructed the Applicant individually and that the Applicant therefore had the right to pursue its two clients separately for fees. 11. The application proceeded by way of written submissions. 12. Having perused the application, the affidavit in support thereof, the further affidavit, the replying affidavit, the submissions by the two sides and the record in its entirety, I deduce the single issue for determination to be whether the Applicant is entitled to recover fees from the Respondent, pursuant to the consent recorded by the parties and in light of the fact that the Applicant is seeking to recover fees from Nicholas Otieno through separate proceedings. 13. What is not in dispute is that the Applicant took instructions from and represented the Respondent and Nicholas Otieno in Kisumu HCFP&A No. 428 of 2014; In the Estate of See Tinyo Abira (Deceased) and that the Applicant and the Respondent entered into and executed the consent dated 2nd April, 2024, that was in the following terms: “ 1. That the Respondent shall pay Ksh.80,000/- together with the costs of this application agreed at Ksh.10,000/- to the Applicant in complete settlement of this matter. 2. That the payment of the above-mentioned sum will be done in three equal monthly instalments, the first payment being on or before 2nd of June, 2024, the second one being on or before 2nd July, 2024 and the third and final instalment on or before 2nd August, 2024. 3. In default of the above payments being made, execution to issue.” 14. The consent was between the Applicant and the Respondent. Nicholas Otieno was not a party to the consent or to the matter in which the consent was recorded. 15. It is instructive from the record that it is on the basis of the above consent that the certificate of costs was issued. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16769/eng@2025-10-30 2

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16. The Respondent states in his affidavit that he paid Ksh.20,000/- towards satisfaction of the consent, in two instalments of Ksh.10,000/-, the first one being on 3rd August, 2024 and the second one on 4th September, 2024. Going strictly by the terms of the consent, the Respondent was in default as not even the first instalment was paid within the agreed period of time. 17. In law, a consent is a contract between the parties and binds only the parties who are part of the consent. 18. In the case of Flora N. Wasike v Destimo Wamboko [1988] eKLR the Court of Appeal held that a consent entered into by agreement of the parties has the effect of a contract between the parties. 19. The court further held that because of that contractual character, a consent can only be set aside (or varied) on the same grounds as would justify rescinding or setting aside a contract, such as: fraud, misrepresentation, mistake; or duress, undue influence; or where consent was given without knowledge of sufficient material facts or in ignorance; or an agreement contrary to public policy or the policy of the court. 20. In Xavier v County Government of Narok & 4 others; Mutua (Applicant); Primary (Interested Party) (Environment & Land Case 3 of 2023) [2024] KEELC 1190 (KLR) (6 March 2024) (Ruling)it was held that the parties to a consent judgment are only those who consented; a third party cannot be bound by the consent judgment unless he or she was a party or had consented. 21. Just as in a contract, the parties to a consent can only agree on rights and duties amongst themselves. Parties to a consent cannot rope in a third party without his consent as this will go against the doctrine of privity of contract.The binding effect of a consent is limited to parties who have agreed and thirdparties are not affected by the consent. 22. What then follows from the material before me is that the consent that was entered into between the Applicant and the Respondent was privy only to the two parties and the argument that the Applicant is pursuing another person, who was not a party to the consent, cannot be proffered as a means by the Respondent to evade the terms of and his obligations in the consent, which terms bind him. 23. As we have seen from the case of Flora Wasike (supra), the only way that the Respondent would release himself from the terms of the consent would be by way of applying for and successfully having the same set aside on the same grounds that would allow for the setting aside of a contract. In so far as the consent has not been set aside, the Respondent is bound by its terms. 24. The Respondent stated in his affidavit that he paid Ksh.20,000/- towards the liquidation of the amount that the Applicant was entitled to. That then means that he failed to pay the first instalment of Ksh.30,000/- in full, which he was required to pay on or before 2nd June, 2024. The date of default is therefore 2nd June, 2024, upon which the Applicant was entitled to proceed to execute. 25. As the unpaid amount is Ksh.70,000/-, the Applicant is entitled to recover interest at court rates from the date of default. 26. Being of the foregoing persuasion, I find that the Applicant’s application dated 12th August, 2024 has merit and I will proceed to allow it in the following terms: a. That judgement is hereby entered in favour of the Applicant against the Respondent for the sum of Ksh.70,000/-. b. That the above sum shall attract interest at the rate of 14% per annum from 2nd June, 2024 until payment in full. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16769/eng@2025-10-30 3

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c. 27. That as the Notice of Motion dated 12th August, 2024 was in respect of a fiduciary relationship between the parties, I make no orders as to costs in respect thereof. This file is closed. DELIVERED (VIRTUALLY), DATED AND SIGNED THIS 30TH DAY OF OCTOBER, 2025. JOE M. OMIDO JUDGE For the Applicant: Mr. Abira. For the Respondent: Mr. Nyambega For Mr. Okore. Court Assistant: Mr. Ngoge & Mr. Juma. Mr. Nyambega: I seek 30 days stay. Mr. Abira: No objection. Court: Stay of execution for 30 days. JOE M. OMIDO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16769/eng@2025-10-30 4

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