[1] This appeal arises from the ruling and order issued in Homa Bay Chief Magistrate’s Civil Case No. 58 of 2020: Jaqueline Akinyi Onyona v Evans Rabongo . The appellant had sued the respondent in that suit vide her Plaint dated 9 th March 2020 claiming the sum of Kshs. 240,000/= together with interest and costs of the suit. Her cause of action was that pursuant to a supply contract, she supplied the respondent with tiles worth Kshs. 651,000/= in respect of the construction of his property known as Vanity Lounge; and that while the respondent made part payment for the goods, there was an outstanding balance of Kshs. 240,000/= which was due as at 21 st December 2019.
[2] The respondent filed a Statement of Defence dated 20 th September 2020 admitting to the existence of the contract. He however denied that there was any balance due or owing from him. He therefore prayed that the appellant’s suit be dismissed with costs.
[3] The record of the lower court shows that the matter was processed and fixed for hearing; and that in the course of time, the parties recorded a consent judgment on 13 th April 2021 in the following terms:
[a] By consent, judgment be and is hereby entered for the Plaintiff as prayed for by the Plaintiff.
[b] The Defendant to pay the principal amount of Kshs, 240,000 by monthly instalments. Kshs. 30, 000 per month with effect from 1 st of May. [c] The issue of costs be set for December by the court or by consent of the parties.
[4] Thereafter, a Bill of Costs was filed and taxed at Kshs. 80,855 and a Notice to Show Cause issued on 29 th June 2022. On 20 th November 2023, the respondent filed a Notice of Motion seeking a temporary injunction to restrain the appellant from executing the decree. The Motion further sought to lift the Warrants of Attachment, set aside the consent judgment, and grant the respondent leave to defend the suit on its merits.
[5] The respondent averred that despite instructing the firm of H. Obach & Partners to represent him, the firm failed to provide updates on the status of the case after filing the Defence. He expressed dismay and distress upon discovering that a consent judgment had been entered against him for the sum of Kshs. 349,731.95, and contended that it was obtained fraudulently. Consequently, upon learning of the judgment, the respondent appointed M/s Nyakwamba & Co. Advocates to for the purpose of having the consent judgment set aside.
[6] The respondent urged the trial court to find that the consent judgment was entered into by mistake on the part of counsel; which mistake should not be visited upon him. He further contended that he had a Defence that raised triable issues. It was further the contention of the respondent that he had been condemned unheard, and that he would suffer immensely for the fault of his counsel if the appellant were to be allowed to proceed with execution of the decree arising from the consent judgment.
[7] In a Replying Affidavit sworn on 17 th January 2024, the appellant opposed the application, and averred that it is as an abuse of process. She contended that the application was belated, given that the consent judgment was recorded nearly three years prior thereto, on 13 th April 2021, The appellant urged the lower court to note that the respondent had been aware of the judgment since 1 st May 2021 yet remained indolent regarding both the proceedings and payment. She further averred that the respondent only sought the setting aside of the consent judgment when she commenced formal execution proceedings. She therefore posited that the intention of the respondent was to deny her the fruits of her judgment.
[8] The application was canvassed by way of written submissions and in its ruling dated 16 th February 2024, the learned magistrate set aside the consent judgment on the following terms:
[a] Thrown away costs of Kshs. 20,000 to be paid to the Advocate for the Plaintiff/Respondent within the period of 15 days.
[b] That the Defendant shall be granted leave to file defence within 15 days failing which the orders granted shall lapse and consent judgment shall be reinstated.
[9] Being dissatisfied with the decision of the trial court above, the appellant filed the instant appeal herein on the grounds that:
[a] The learned magistrate failed to appreciate that the appellant had duly filed a response to the application in question and instead went ahead to write his ruling as though there was no response at all to the said application.
[b] The ruling of the lower court essentially set aside a consent judgment when there was no reason whatsoever to justify that decision.
[c] The subordinate court misapprehended its powers especially when it comes to setting aside of a consent judgment.
[d] The ruling of the subordinate court is illegal and has occasioned injustice to the appellant.
[10] Accordingly, the appellant prayed that her appeal be allowed, the ruling and order of the learned magistrate dated 16 th February 2024 be set aside and that the costs of the appeal and of the application in the subordinate court be awarded to her.
[11] The appeal was canvassed by way of written submissions. The appellant filed submissions dated 7 th February 2025, while the respondent’s submissions were dated 19 th March 2025. The appellant contended that the trial court erred in finding that the application was unopposed, as stated in paragraph 5 of the ruling, yet she had filed a Replying Affidavit on 17 th January 2024, which explicitly evinced her opposition. She therefore submitted that the ruling was flawed, as it was not based on a proper evaluation of her response.
[12] The appellant further submitted that the trial court set aside the consent judgment without sufficient cause. She pointed out that at paragraph 2 of the ruling, the court acknowledged that the respondent was duly represented by counsel; and that the consent judgment was entered into by Advocates for both parties and formally adopted by the court on 13 th April 2024. Therefore, the appellant submitted that the consent judgment could only be set aside on the grounds that would justify setting aside a contract. She relied on the cases of Muriuki v Inanga (Civil Appeal 112 of 2021) [2023] KEHC 19092 (KLR) (21 June 2023) (Judgment) and Kenya Commercial Bank Ltd. v Specialised Engineering Company Ltd [1982] KLR 485.
[13] The appellant contended that, although the respondent’s claim was that his Advocate acted without instructions, he failed to demonstrate that he lodged any complaint against the said Advocate to substantiate his allegations. He urged the Court to note that no correspondence or other evidence showing any attempt to challenge or rectify the alleged conduct was presented before the lower court. Additionally, the appellant submitted that the respondent did not give any justification for filing his application two (2) years after the consent judgment was entered. She therefore prayed that her appeal be allowed with costs.
[14] The respondent relied on his submissions dated 19 th March 2025 in which he conceded that the trial court failed to consider the appellant’s Replying Affidavit. Nevertheless, he submitted that this Court, being the first appellate court, is empowered to take the said affidavit into account in rendering its judgment. The respondent further submitted that the consent was recorded without justification after the Advocate on record sought two weeks to file it. In his view, the consent judgment was entered into precipitously despite the request for additional time and was therefore invalid.
[15] Further to the foregoing, it was the submission of the respondent that he had lost contact with his Advocate, who was based in Nairobi. He therefore denied having given any instructions to his advocate to enter into the impugned consent. The court was referred to the case of Republic v District Land Registrar Nandi & another, ex parte Tegerei & another [2005] KEHC 3197 (KLR), for the proposition that, whereas in general an advocate has apparent authority to compromise a client’s case, such authority cannot be sustained where the advocate enters into consent orders that directly contradict the client’s express instructions. Accordingly, the respondent prayed that the appeal be dismissed with costs.
[16] This being a first appeal, it is the duty of this Court to re-evaluate the evidence that was placed before the lower court and make its own conclusions thereon. The words of Sir Clement de Lestang, VP, in Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, are apt, namely, that:
"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..."
[17] Moreover, it was in the discretion of the lower court to review and set aside the consent judgment and therefore such exercise of such discretion can only be interfered with by an appellate court if any of the circumstances set out in United India Insurance Co. Ltd v East African Underwriters (Kenya) Ltd [1985] E A 898, are established. It was held therein thus by the Court of Appeal:
“ The Court of Appeal will not interfere with a discretionary decision of the judge appealed from simply on the ground that its members, if sitting at first instance, would or might have given different weight to that given by the judge to the various factors in the case. The Court of Appeal is only entitled to interfere if one or more of the following matters are established: first, that the judge misdirected himself in law; secondly, that he misapprehended the facts; thirdly, that he took account of considerations of which he should not have taken account; fourthly, that he failed to take account of considerations of which he should have taken account, or fifthly, that his decision, albeit a discretionary one, is plainly wrong.”
[18] I have considered the appeal and the submissions filed by the parties. The sole issue for determination is whether the consent judgment was set aside in accordance with the established principles of law.
[19] It is settled law that counsel may compromise a matter on behalf of a client, so long as such authority is exercised bona fide and not in contravention of the client’s express negative instructions. Further, as submitted by the appellant, a consent order is in the nature of a contract and may only be set aside on grounds of fraud, misrepresentation, or any other sufficient cause.
[20] Hence, in Flora N. Wasike v Destimo Wamboko (supra) the Court of Appeal approved an opinion expressed in Setton on Judgments and Orders (7 th Edition) Vol. 1, page 124 that:
"Prima facie, any order made in the presence and with the consent of counsel is binding on all parties to the proceedings or action, and on those claiming under them ... and cannot be varied or discharged unless obtained by fraud or collusion, or by an agreement contrary to the policy of the court ...; or if the consent was given without sufficient material facts, or in general for a reason which would enable the court to set aside an agreement."
[21] Similarly, in the case of Brooke Bond Liebig (T) Limited v Mallya [1975] E A Law JA, stated the law at p. 269 in these terms:-
'The circumstances in which a consent judgment may be interfered with were considered by this court in Hirani vs Kassam (1952), 19EACA 131, where the following passage from Seton on Judgments and Orders, 7th edhition, Vol.1 p.124 was approved:
Prima facie ,any order made in the presence and with the consent of counsel is binding on all parties to the proceedings or action, and on those claiming under them...and cannot be varied or discharged unless obtained by fraud or collusion, or by an agreement contrary to the policy of the court...or if consent was given without sufficient material facts, or in misapprehension or in ignorance of material facts, or in general for a reason which would enable the court to set aside an agreement."
[22] The proceedings of 23 rd March 2021 confirm that indeed counsel for the parties prayed for time to enable them attempt an out of court settlement. Their request was granted and the matter was stood over to 13 th April 2021. On 13 th April 2021, counsel for the respondent asked for two more weeks to file a consent. Before the learned magistrate could rule on that request, counsel for the appellant indicated that they had a consent to record. After dictating the consent, counsel for the respondent is recorded as having confirmed the terms of the consent as recorded. It was thereupon that the learned magistrate adopted the consent of the parties as the judgment of the court.
[23] For that consent judgment to be set aside, the respondent needed to demonstrate that the consent was given without sufficient material facts, or in misapprehension or in ignorance of material facts, or in general for a reason which would enable the court to set aside an agreement, such as fraud, misrepresentation or mistake. A perusal of the affidavit in support of the respondent’s application shows that he complained that a mistake was made by his erstwhile Advocate in that he entered into a consent on his behalf without obtaining his express instructions.
[24] It is trite however that an advocate has ostensible authority to compromise a suit on behalf of his client. In Samuel Mbugua Ikumbu vs. Barclays Bank of Kenya Ltd (supra) wherein it was held that:
“An advocate has general authority to compromise on behalf of his client as long as he is acting bona fide and not contrary to express negative direction. In the absence of proof of any express negative direction, the order shall be binding.” (see also Samuel Wambugu Mwangi vs. Othaya Boys High School (supra)
[25] Similarly, in Kenya Commercial Bank Limited v Benjoh Amalgamated Limited & Another [1998] KECA 236 (KLR), it was pointed out that:
The extent of authority of a solicitor to compromise is set out in a passage in The Supreme Court Practice 1976 (Vol.2) paragraph 2013 page 620 as follows:-
"Authority of Solicitor- a solicitor has a general authority to compromise on behalf of his client, if he acts bona fide and not contrary to express negative direction; and it would seem that a solicitor acting as agent for the principal solicitor has the same power (Re Newen, [1903] 1 Ch pp 817,818; Little vs Spreadbury, [1910]2 KB 658). No limitation of the implied authority avails the client as against the other side unless such limitation has been brought to their notice- see Welsh vs Roe [1918 - (9] All E.R Rep 620."
[26] In the circumstances, rather than merely allege a mistake on behalf of his counsel, it was incumbent upon the respondent to demonstrate that he had given the Advocate express instructions to the contrary. Since this was not done, it is my finding that the learned magistrate misdirected himself in finding that there was a mistake committed by the Advocate then on record. He also misdirected himself by entirely ignoring the Replying Affidavit filed by the appellant in the mistaken belief that the appellant had filed no response to the application.
[27] Lastly, no plausible explanation was given for the inordinate delay; and even assuming that the respondent had indeed lost contact with his erstwhile Advocate as alleged by him, it is now trite that a suit belongs to the parties; and therefore it is ultimately the responsibility of parties to ensure expeditious disposal. The Court of Appeal made this point in Habo Agencies Limited v Wilfred Odhiambo Musingo [2015] eKLR as follows:
“It is not enough for a party in litigation to simply blame the Advocates on record for all manner of transgressions in the conduct of the litigation. Courts have always emphasized that parties have a responsibility to show interest in and to follow up their cases even when they are represented by counsel.”
[28] The same position was taken in Bi-Mach Engineers Limited v James Kahoro Mwangi [2011] eKLR , in which the Court held:
“The applicant had a duty to pursue his advocates to find out the position on the litigation but there is no disclosure that the applicant bothered to follow up on the matter with his erstwhile advocates. It is not enough simply to accuse the advocate of failure to inform as if there is no duty on the client to pursue his matter. If the advocate was simply guilty of inaction, that is not an excusable mistake which the court may consider with some sympathy.”
[29] For those reasons, I find merit in the appeal. The same is hereby allowed and orders granted as follows:
[a] That the ruling and order of the learned magistrate dated 16 th February 2024 be and is hereby set aside and is substituted by the order of this court dismissing the said application.
[b] That each party to bear own costs of the appeal and of the subject application.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 31 ST DAY OF JULY 2026
[2] The respondent filed a Statement of Defence dated 20 th September 2020 admitting to the existence of the contract. He however denied that there was any balance due or owing from him. He therefore prayed that the appellant’s suit be dismissed with costs.
[3] The record of the lower court shows that the matter was processed and fixed for hearing; and that in the course of time, the parties recorded a consent judgment on 13 th April 2021 in the following terms:
[a] By consent, judgment be and is hereby entered for the Plaintiff as prayed for by the Plaintiff.
[b] The Defendant to pay the principal amount of Kshs, 240,000 by monthly instalments. Kshs. 30, 000 per month with effect from 1 st of May. [c] The issue of costs be set for December by the court or by consent of the parties.
[4] Thereafter, a Bill of Costs was filed and taxed at Kshs. 80,855 and a Notice to Show Cause issued on 29 th June 2022. On 20 th November 2023, the respondent filed a Notice of Motion seeking a temporary injunction to restrain the appellant from executing the decree. The Motion further sought to lift the Warrants of Attachment, set aside the consent judgment, and grant the respondent leave to defend the suit on its merits.
[5] The respondent averred that despite instructing the firm of H. Obach & Partners to represent him, the firm failed to provide updates on the status of the case after filing the Defence. He expressed dismay and distress upon discovering that a consent judgment had been entered against him for the sum of Kshs. 349,731.95, and contended that it was obtained fraudulently. Consequently, upon learning of the judgment, the respondent appointed M/s Nyakwamba & Co. Advocates to for the purpose of having the consent judgment set aside.
[6] The respondent urged the trial court to find that the consent judgment was entered into by mistake on the part of counsel; which mistake should not be visited upon him. He further contended that he had a Defence that raised triable issues. It was further the contention of the respondent that he had been condemned unheard, and that he would suffer immensely for the fault of his counsel if the appellant were to be allowed to proceed with execution of the decree arising from the consent judgment.
[7] In a Replying Affidavit sworn on 17 th January 2024, the appellant opposed the application, and averred that it is as an abuse of process. She contended that the application was belated, given that the consent judgment was recorded nearly three years prior thereto, on 13 th April 2021, The appellant urged the lower court to note that the respondent had been aware of the judgment since 1 st May 2021 yet remained indolent regarding both the proceedings and payment. She further averred that the respondent only sought the setting aside of the consent judgment when she commenced formal execution proceedings. She therefore posited that the intention of the respondent was to deny her the fruits of her judgment.
[8] The application was canvassed by way of written submissions and in its ruling dated 16 th February 2024, the learned magistrate set aside the consent judgment on the following terms:
[a] Thrown away costs of Kshs. 20,000 to be paid to the Advocate for the Plaintiff/Respondent within the period of 15 days.
[b] That the Defendant shall be granted leave to file defence within 15 days failing which the orders granted shall lapse and consent judgment shall be reinstated.
[9] Being dissatisfied with the decision of the trial court above, the appellant filed the instant appeal herein on the grounds that:
[a] The learned magistrate failed to appreciate that the appellant had duly filed a response to the application in question and instead went ahead to write his ruling as though there was no response at all to the said application.
[b] The ruling of the lower court essentially set aside a consent judgment when there was no reason whatsoever to justify that decision.
[c] The subordinate court misapprehended its powers especially when it comes to setting aside of a consent judgment.
[d] The ruling of the subordinate court is illegal and has occasioned injustice to the appellant.
[10] Accordingly, the appellant prayed that her appeal be allowed, the ruling and order of the learned magistrate dated 16 th February 2024 be set aside and that the costs of the appeal and of the application in the subordinate court be awarded to her.
[11] The appeal was canvassed by way of written submissions. The appellant filed submissions dated 7 th February 2025, while the respondent’s submissions were dated 19 th March 2025. The appellant contended that the trial court erred in finding that the application was unopposed, as stated in paragraph 5 of the ruling, yet she had filed a Replying Affidavit on 17 th January 2024, which explicitly evinced her opposition. She therefore submitted that the ruling was flawed, as it was not based on a proper evaluation of her response.
[12] The appellant further submitted that the trial court set aside the consent judgment without sufficient cause. She pointed out that at paragraph 2 of the ruling, the court acknowledged that the respondent was duly represented by counsel; and that the consent judgment was entered into by Advocates for both parties and formally adopted by the court on 13 th April 2024. Therefore, the appellant submitted that the consent judgment could only be set aside on the grounds that would justify setting aside a contract. She relied on the cases of Muriuki v Inanga (Civil Appeal 112 of 2021) [2023] KEHC 19092 (KLR) (21 June 2023) (Judgment) and Kenya Commercial Bank Ltd. v Specialised Engineering Company Ltd [1982] KLR 485.
[13] The appellant contended that, although the respondent’s claim was that his Advocate acted without instructions, he failed to demonstrate that he lodged any complaint against the said Advocate to substantiate his allegations. He urged the Court to note that no correspondence or other evidence showing any attempt to challenge or rectify the alleged conduct was presented before the lower court. Additionally, the appellant submitted that the respondent did not give any justification for filing his application two (2) years after the consent judgment was entered. She therefore prayed that her appeal be allowed with costs.
[14] The respondent relied on his submissions dated 19 th March 2025 in which he conceded that the trial court failed to consider the appellant’s Replying Affidavit. Nevertheless, he submitted that this Court, being the first appellate court, is empowered to take the said affidavit into account in rendering its judgment. The respondent further submitted that the consent was recorded without justification after the Advocate on record sought two weeks to file it. In his view, the consent judgment was entered into precipitously despite the request for additional time and was therefore invalid.
[15] Further to the foregoing, it was the submission of the respondent that he had lost contact with his Advocate, who was based in Nairobi. He therefore denied having given any instructions to his advocate to enter into the impugned consent. The court was referred to the case of Republic v District Land Registrar Nandi & another, ex parte Tegerei & another [2005] KEHC 3197 (KLR), for the proposition that, whereas in general an advocate has apparent authority to compromise a client’s case, such authority cannot be sustained where the advocate enters into consent orders that directly contradict the client’s express instructions. Accordingly, the respondent prayed that the appeal be dismissed with costs.
[16] This being a first appeal, it is the duty of this Court to re-evaluate the evidence that was placed before the lower court and make its own conclusions thereon. The words of Sir Clement de Lestang, VP, in Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, are apt, namely, that:
"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..."
[17] Moreover, it was in the discretion of the lower court to review and set aside the consent judgment and therefore such exercise of such discretion can only be interfered with by an appellate court if any of the circumstances set out in United India Insurance Co. Ltd v East African Underwriters (Kenya) Ltd [1985] E A 898, are established. It was held therein thus by the Court of Appeal:
“ The Court of Appeal will not interfere with a discretionary decision of the judge appealed from simply on the ground that its members, if sitting at first instance, would or might have given different weight to that given by the judge to the various factors in the case. The Court of Appeal is only entitled to interfere if one or more of the following matters are established: first, that the judge misdirected himself in law; secondly, that he misapprehended the facts; thirdly, that he took account of considerations of which he should not have taken account; fourthly, that he failed to take account of considerations of which he should have taken account, or fifthly, that his decision, albeit a discretionary one, is plainly wrong.”
[18] I have considered the appeal and the submissions filed by the parties. The sole issue for determination is whether the consent judgment was set aside in accordance with the established principles of law.
[19] It is settled law that counsel may compromise a matter on behalf of a client, so long as such authority is exercised bona fide and not in contravention of the client’s express negative instructions. Further, as submitted by the appellant, a consent order is in the nature of a contract and may only be set aside on grounds of fraud, misrepresentation, or any other sufficient cause.
[20] Hence, in Flora N. Wasike v Destimo Wamboko (supra) the Court of Appeal approved an opinion expressed in Setton on Judgments and Orders (7 th Edition) Vol. 1, page 124 that:
"Prima facie, any order made in the presence and with the consent of counsel is binding on all parties to the proceedings or action, and on those claiming under them ... and cannot be varied or discharged unless obtained by fraud or collusion, or by an agreement contrary to the policy of the court ...; or if the consent was given without sufficient material facts, or in general for a reason which would enable the court to set aside an agreement."
[21] Similarly, in the case of Brooke Bond Liebig (T) Limited v Mallya [1975] E A Law JA, stated the law at p. 269 in these terms:-
'The circumstances in which a consent judgment may be interfered with were considered by this court in Hirani vs Kassam (1952), 19EACA 131, where the following passage from Seton on Judgments and Orders, 7th edhition, Vol.1 p.124 was approved:
Prima facie ,any order made in the presence and with the consent of counsel is binding on all parties to the proceedings or action, and on those claiming under them...and cannot be varied or discharged unless obtained by fraud or collusion, or by an agreement contrary to the policy of the court...or if consent was given without sufficient material facts, or in misapprehension or in ignorance of material facts, or in general for a reason which would enable the court to set aside an agreement."
[22] The proceedings of 23 rd March 2021 confirm that indeed counsel for the parties prayed for time to enable them attempt an out of court settlement. Their request was granted and the matter was stood over to 13 th April 2021. On 13 th April 2021, counsel for the respondent asked for two more weeks to file a consent. Before the learned magistrate could rule on that request, counsel for the appellant indicated that they had a consent to record. After dictating the consent, counsel for the respondent is recorded as having confirmed the terms of the consent as recorded. It was thereupon that the learned magistrate adopted the consent of the parties as the judgment of the court.
[23] For that consent judgment to be set aside, the respondent needed to demonstrate that the consent was given without sufficient material facts, or in misapprehension or in ignorance of material facts, or in general for a reason which would enable the court to set aside an agreement, such as fraud, misrepresentation or mistake. A perusal of the affidavit in support of the respondent’s application shows that he complained that a mistake was made by his erstwhile Advocate in that he entered into a consent on his behalf without obtaining his express instructions.
[24] It is trite however that an advocate has ostensible authority to compromise a suit on behalf of his client. In Samuel Mbugua Ikumbu vs. Barclays Bank of Kenya Ltd (supra) wherein it was held that:
“An advocate has general authority to compromise on behalf of his client as long as he is acting bona fide and not contrary to express negative direction. In the absence of proof of any express negative direction, the order shall be binding.” (see also Samuel Wambugu Mwangi vs. Othaya Boys High School (supra)
[25] Similarly, in Kenya Commercial Bank Limited v Benjoh Amalgamated Limited & Another [1998] KECA 236 (KLR), it was pointed out that:
The extent of authority of a solicitor to compromise is set out in a passage in The Supreme Court Practice 1976 (Vol.2) paragraph 2013 page 620 as follows:-
"Authority of Solicitor- a solicitor has a general authority to compromise on behalf of his client, if he acts bona fide and not contrary to express negative direction; and it would seem that a solicitor acting as agent for the principal solicitor has the same power (Re Newen, [1903] 1 Ch pp 817,818; Little vs Spreadbury, [1910]2 KB 658). No limitation of the implied authority avails the client as against the other side unless such limitation has been brought to their notice- see Welsh vs Roe [1918 - (9] All E.R Rep 620."
[26] In the circumstances, rather than merely allege a mistake on behalf of his counsel, it was incumbent upon the respondent to demonstrate that he had given the Advocate express instructions to the contrary. Since this was not done, it is my finding that the learned magistrate misdirected himself in finding that there was a mistake committed by the Advocate then on record. He also misdirected himself by entirely ignoring the Replying Affidavit filed by the appellant in the mistaken belief that the appellant had filed no response to the application.
[27] Lastly, no plausible explanation was given for the inordinate delay; and even assuming that the respondent had indeed lost contact with his erstwhile Advocate as alleged by him, it is now trite that a suit belongs to the parties; and therefore it is ultimately the responsibility of parties to ensure expeditious disposal. The Court of Appeal made this point in Habo Agencies Limited v Wilfred Odhiambo Musingo [2015] eKLR as follows:
“It is not enough for a party in litigation to simply blame the Advocates on record for all manner of transgressions in the conduct of the litigation. Courts have always emphasized that parties have a responsibility to show interest in and to follow up their cases even when they are represented by counsel.”
[28] The same position was taken in Bi-Mach Engineers Limited v James Kahoro Mwangi [2011] eKLR , in which the Court held:
“The applicant had a duty to pursue his advocates to find out the position on the litigation but there is no disclosure that the applicant bothered to follow up on the matter with his erstwhile advocates. It is not enough simply to accuse the advocate of failure to inform as if there is no duty on the client to pursue his matter. If the advocate was simply guilty of inaction, that is not an excusable mistake which the court may consider with some sympathy.”
[29] For those reasons, I find merit in the appeal. The same is hereby allowed and orders granted as follows:
[a] That the ruling and order of the learned magistrate dated 16 th February 2024 be and is hereby set aside and is substituted by the order of this court dismissing the said application.
[b] That each party to bear own costs of the appeal and of the subject application.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 31 ST DAY OF JULY 2026