1. I have considered the notice of Motion application dated 31 October 2024 together with the reply sworn in opposition to the same dated 30 November 2024, the submissions of the parties and the applicable law.
2. The applicant seeks to set aside the consent judgement entered on 30 October 2024. Based on reading of the supporting affidavit, the facts are that the consent was signed and recorded by the previous advocates on record for the Applicant, on 5th September 2024. Thereafter, the present advocates came on record, vide a notice of change of Advocates dated 8th October, 2024. The consent was adopted as an order of the court on 30 October, 2024 and the matter was marked as closed.
3. It is not in dispute that the previous advocates for the applicant were properly on record at the time the consent was recorded. Nor has the authenticity of the consent been called into question. And finally, the applicant has not deposed that either his previous advocates were acting contrary to his instructions as a client, at the time of recording the consent, or that he brought such information to the attention of the respondent after recording the consent, but before its adoption as an order of the court.
4. The principles governing setting aside of a Consent Order are well established within this jurisdiction. In Brooke Bond Liebig v Mallya [1975] EA 266 Mustafa Ag. VP expressed the following principles;
The compromise agreement was made an order of the court and was thus a consent judgment. It is well settled that a consent judgment can be set aside only in certain circumstances, e.g on grounds of fraud or collusion, that there was no consensus between the parties, public policy or for such reasons as would enable a court to set aside or rescind a contract. In this case the parties and their advocates consented to the compromise in very clear terms; they were certainly aware of all the material facts and there could not have been any mistake or misunderstanding. None of the factors which could give rise to the setting aside of a consent agreement existed.
5. In Flora N. Wasike v Destimo Wamboko(supra) Hancox JA.,(as he was then) cited Setton on Judgments and orders (7th edition) vol 1 page 124, and reiterated that:-
“Any order made in the presence and with the consent of Counsel is binding on all parties to the proceedings or action, and 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 a court set aside an agreement.”
6. Based on the record before me, I am not persuaded that there is evidence of fraud, collusion, or that the consent is contrary to public policy. More likely, the application is an afterthought.
7. Further, looking at the submission of Counsel, that the consent will unlawfully withdraw a criminal case, I am not persuaded. The terms of the consent simply state that the petitioner shall apply to withdraw criminal case number E469 of 2024. The final decision to actually withdraw, does not however rest with the Petitioner, and therefore, in my view, no illegality may occur from a mere application to withdraw.
8. Additionally, it is evident from a reading of the reply that the parties had various discussions and voluntarily entered into the consent, which is signed by the advocates who were on record at the time of the agreement. In Kenya Commercial Bank Ltd V Specialised Engineering Co. Ltd [1982] KLR 485, Harris J. held that
“1. A consent order entered into by counsel is binding on all parties to the proceedings and cannot be set aside or varied unless it is proved that it was obtained by fraud or collusion or by an agreement contrary to the policy of the court or where the consent was given without sufficient material facts or in misapprehension or ignorance of such facts in general for a reason which would enable the court to set aside an agreement.
2. A duly instructed advocate has an implied general authority to compromise and settle the action and the client cannot avail himself of any limitation by him of the implied authority to his advocate unless such limitation was brought to the notice of the other side.”
9. In the present matter no such limitation was brought to attention of the Court, and I am satisfied that the advocated had authority at the time of recording the consent.
10. Guided by the above authorities, and based on the record, I am satisfied that is no evidence to show that any of the above criteria upon which a consent may be set aside has been met. Accordingly, I find that the application is without merit.
11. The Application is dismissed with costs. The file is marked as closed.
2. The applicant seeks to set aside the consent judgement entered on 30 October 2024. Based on reading of the supporting affidavit, the facts are that the consent was signed and recorded by the previous advocates on record for the Applicant, on 5th September 2024. Thereafter, the present advocates came on record, vide a notice of change of Advocates dated 8th October, 2024. The consent was adopted as an order of the court on 30 October, 2024 and the matter was marked as closed.
3. It is not in dispute that the previous advocates for the applicant were properly on record at the time the consent was recorded. Nor has the authenticity of the consent been called into question. And finally, the applicant has not deposed that either his previous advocates were acting contrary to his instructions as a client, at the time of recording the consent, or that he brought such information to the attention of the respondent after recording the consent, but before its adoption as an order of the court.
4. The principles governing setting aside of a Consent Order are well established within this jurisdiction. In Brooke Bond Liebig v Mallya [1975] EA 266 Mustafa Ag. VP expressed the following principles;
The compromise agreement was made an order of the court and was thus a consent judgment. It is well settled that a consent judgment can be set aside only in certain circumstances, e.g on grounds of fraud or collusion, that there was no consensus between the parties, public policy or for such reasons as would enable a court to set aside or rescind a contract. In this case the parties and their advocates consented to the compromise in very clear terms; they were certainly aware of all the material facts and there could not have been any mistake or misunderstanding. None of the factors which could give rise to the setting aside of a consent agreement existed.
5. In Flora N. Wasike v Destimo Wamboko(supra) Hancox JA.,(as he was then) cited Setton on Judgments and orders (7th edition) vol 1 page 124, and reiterated that:-
“Any order made in the presence and with the consent of Counsel is binding on all parties to the proceedings or action, and 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 a court set aside an agreement.”
6. Based on the record before me, I am not persuaded that there is evidence of fraud, collusion, or that the consent is contrary to public policy. More likely, the application is an afterthought.
7. Further, looking at the submission of Counsel, that the consent will unlawfully withdraw a criminal case, I am not persuaded. The terms of the consent simply state that the petitioner shall apply to withdraw criminal case number E469 of 2024. The final decision to actually withdraw, does not however rest with the Petitioner, and therefore, in my view, no illegality may occur from a mere application to withdraw.
8. Additionally, it is evident from a reading of the reply that the parties had various discussions and voluntarily entered into the consent, which is signed by the advocates who were on record at the time of the agreement. In Kenya Commercial Bank Ltd V Specialised Engineering Co. Ltd [1982] KLR 485, Harris J. held that
“1. A consent order entered into by counsel is binding on all parties to the proceedings and cannot be set aside or varied unless it is proved that it was obtained by fraud or collusion or by an agreement contrary to the policy of the court or where the consent was given without sufficient material facts or in misapprehension or ignorance of such facts in general for a reason which would enable the court to set aside an agreement.
2. A duly instructed advocate has an implied general authority to compromise and settle the action and the client cannot avail himself of any limitation by him of the implied authority to his advocate unless such limitation was brought to the notice of the other side.”
9. In the present matter no such limitation was brought to attention of the Court, and I am satisfied that the advocated had authority at the time of recording the consent.
10. Guided by the above authorities, and based on the record, I am satisfied that is no evidence to show that any of the above criteria upon which a consent may be set aside has been met. Accordingly, I find that the application is without merit.
11. The Application is dismissed with costs. The file is marked as closed.