- INTRODUCTION
- 1. The Applicant by an application dated the 19th June, 2024 sought
- the following orders from the court:
- a) That the consent order of the 15th June, 2022 be reviewed and set
- aside.
- b) That the court do provide costs for the application.
- 2. The grounds upon which the application is brought before the court are:
- a) That the Applicant never gave instructions for the recording of the
- consent order of the 15.9.22 to his advocates.
- b) That the recording of the said consent order was without the authority of the 1st Defendant's/Applicant's instructed advocates on record.
- c) That the advocate who held brief and recorded the consent on the
- 19.6.22 acted in excess of his instructions as he was never instructed
- to record the said consent.
- d) The said consent is extremely injurious to the Applicant whose
- defence on record has clearly been negated by the said consent as
- he pleaded that he was not the owner of the m/v registration number
- KAM 929J at the time of the said accident or at all:
- e) That in all circumstances of the case, the subject consent should and
- could not have been recorded against the Applicant;
- f) That it will be in the interest of justice to review and set aside the
- consent and have the suit heard on its merits
- 3. The application is supported by the 1st Defendant's/Applicant's affidavit
- sworn on the 19th June, 2024 and the annextures thereto and a
- supplementary affidavit of the Applicant sworn on the 30th October, 2024.
- 4. The Plaintiff/Respondent has opposed the application and filed an affidavit in reply thereto sworn by the Plaintiff's advocate Annah Vundi on the 24th September, 2024.
- 5. The Applicant adopts in verbatim the contents of the said two affidavits
- in support of the motion and the annextures thereto.
- APPLICANT’S CASE
- 6. According to the applicant, the consent order was recorded by an advocate who had been instructed by the advocates formerly on record for the 1st Defendant
- 7. The applicant however contends that the said advocate did not have such instructions as to record the subject consent. That is a very serious accusation against an advocate which can lead to disciplinary action being commenced against the advocate in question. If indeed the applicant was serious about that by now action would have been initiated against the concerned advocate. No evidence of such action has been adduced by the applicant thus this court cannot accept the allegation on its face value.
- 8. The applicant contended that when the advocates then acting for the 1st Defendant realized the mistake that the said advocate had made in recording the said consent, they immediately filed application to set aside the subject consent.
- 9. According to the applicant it would appear that the subject consent was entered into on the basis of the consent that was entered into in HCC NO. 4 OF 2018 AT NAKURU where the law firm on Nyaundi Tuiyot & Co. Advocates had entered a general consent on behalf of the insurance company that allegedly had insured the subject accident vehicle KAM 929G that is not even the alleged motor vehicle in the suit herein KAM 929J that is alleged to belong to the 1st
- Defendant which the 1st Defendant has vehemently denied and no proof
- to the contrary has been filed in court.
- 10.The applicant submitted that they have demonstrated by way of affidavit that in any event that subject consent in HCC NO. 4 OF 2018 was on application by the 1st Defendant in that suit set aside on the 15th May, 2024 by a ruling of the Judge Mwongo.
- 11. In the premises the applicant maintained that there is no basis to have the subject order dated the 15.6.22 to continue being on record. It is the applicants’ position that the consent appears to have been recorded in error of the facts and circumstances prevailing in the suit and should therefore be reviewed and set aside.
- 12. The applicant submitted that the law regarding the setting aside of consent order/judgement is clear and well settled. The consent can only be set aside on grounds that justify the setting aside of a contract. In support of the submission counsel cited the case of Hirani Vs Kassam (1952) 19 EACA. It was the Applicant's submission that grounds in the case herein exists that will justify the setting aside of the consent order of the 15.6.22.
- 13. In the case of KCB LTD Vs Specialized Engineering Ltd (1982) KLR 485 the court held that a consent order entered into by Counsel is binding on all the parties to the proceedings and cannot be set aside or varied unless it is proven 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 any sufficient material facts or in mis apprehension or ignorance of such facts in general or for a reason that would enable the court to set aside an agreement.
- 14. According to the applicant, the facts surrounding the recording of the consent as presented by the Applicant have not been disputed by the Respondent making the application merited. The recording of the subject consent on the 15.6,22 was clearly without any sufficient material facts on the part of the advocate that represented the Applicant in the recording of the said consent.
- 15. The basis for the recording having been overturned by the court clearly
- leaves the said consent untenable and a candidate for setting aside.
- 16.According to the applicant all the issues that are raised by the Respondent in the replying affidavit
- have been fully answered by the said ruling of Judge Mwongo.
- 17. The applicant submitted further that Advocate Vundi has failed to comprehend what is very clear in that ruling that the case that had hitherto been filed in Nakuru where the consent was recorded is the same case that was transferred to Naivasha where the subject consent was reviewed and set aside.
- 18. The 1st Defendant/Applicant submitted that the application dated the 15th
- June, 2024 was merited and the same should be allowed as prayed.
- PLAINTIFF/RESPONDENT'S CASE
- 19.The Plaintiff/respondent opposed the application through a Replying Affidavit sworn on 24th September, 2024 whose contents the court has duly considered. According to the respondent the issues for the court to determine are;-
- Whether the firm of Francis Ndar Omollo & Associates Advocates could enter into a consent in this matter on behalf of the 1st Defendant/Applicant as at 15th June, 2022; and
Whether the consent order of 15th June, 2022 was entered into bonafide.
The respondent’s submission is that submit that the firm of Francis Ndar Omollo & Associates Advocates was properly on record for the 1st Defendant/Applicant as at 15th June, 2022 and could as such enter into a consent with the Plaintiff/Respondent on behalf of the 1st Defendant.
Further the respondent submitted that it is an undisputed fact that the 1st Defendant expressly instructed the firm of Francis Ndar Omollo & Associates Advocates to represent him in this matter.
The respondent in support of their case cited the case of Mayaka v Omaera Pharmaceuticals Limited (Cause 2176 of 2016) [2023] KEELRC 305 (KLR) where it was held that:
"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.
"An advocate has general authority to compromise on behalf of his client, as long is acting bona fide and not contrary to the express negative direction. In the absence express negative direction, the order shall be binding."
The respondent went on to argue that prior to and/or on 15th of June, 2022 Counsel for the 1" Defendant and his client did not at any point indicate any limitation to Counsel's authority to represent the 1" Defendant in this matte nor any express negative direction by the 1" Defendant.
As a result, the respondent contended that it has become trite law that 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 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,
The respondent submits that there was no fraud, collusion nor misrepresentation when consent was entered into on 15th June, 2024. The proposal to enter into consent was made by Counsel for the 1" Defendant in open court when the matter came up for hearing on 15th June, 2022. There was no misrepresentation of any of the material facts to the case by the parties. Parties went on further to take directions for formal proof hearing whereby the Counsel for the 1" Defendant expressed that they would be waving their right to demand production of documents by their makers.
The defence and witness statement annexed by the Applicant to his application and even the Nakuru case whose ruling has been annexed to the application were not hidden nor withheld from the Honorable court before consent was entered.
The 1st Defendant/Applicant has not made any averment in his application or the annexures therein to indicate that the Counsel representing him was ignorant of any of the material facts of this suit.
Further, the respondent argued that Counsel for the 1" Defendant entered into consent judgment fully aware of all the facts pertaining to this case and is therefore estopped from claiming ignorance or mistake.
The respondent’s case is that this application is merely a tactic by the 1st Defendant/Applicant to delay the matter which has been alive in court for more than fifteen (15) years, and therefore the respondent urged the court to find it without merit.
ANALYSIS AND DETERMINATION
- The applicant in this matter has admitted that the consent in issue was entered into by a counsel who was acting on authority of the duly instructed counsel. The consent was thus valid and enforceable.
- The applicant has not alluded to the counsel who recorded the consent having acted fraudulently or in collusion with the counsel for the plaintiff/respondent. The is no suggestion that the recording of the consent was in any way influenced by counsel for the plaintiff/respondent.
- The applicant in this matter is keen on strongly clinging on to the fact of there was another consent that was recorded in a different suit which was reviewed by Hon. Justice Mwongo. The applicant has not presented any evidence to show that the recording of the consent in this matter was premised on that consent.
- The advocate who represented the 1stDefendant/applicant should have sworn an affidavit to that effect if this court was to be persuaded that the reason why the consent was entered into was because there was a consent in High Court Civil Suit No 4 of 2018. That burden lay on the shoulders of the applicant who desired to invalidate the consent.
- The law on the binding nature of consents is now well settled. The applicant ought to prove to the satisfaction of the court that the consent was not voluntarily entered into and or that there was some aspect of fraud or collusion by advocate who recorded the consent and counsel for the other party. See KCB LTD Vs Specialized Engineering Ltd (1982) KLR 485 where the court held that a consent order entered into by Counsel is binding on all the parties to the proceedings and cannot be set aside or varied unless it is proven 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 any sufficient material facts or in mis apprehension or ignorance of such facts in general or for a reason that would enable the court to set aside an agreement.
- The applicant has attempted to allude to a mistake on the part of the counsel who recorded the consent. It is however intriguing how that could have been possible, if as contended by the applicant in their submission, that the instant consent was record on the basis of another consent which was later set aside.
- The applicant has not addressed the question how a consent entered in another separate matter would affect the consent in the instant suit yet the respondent herein was not a party to the other suit High Court No. 4 of 2018. The applicant cannot seek to invalidate a consent entered by counsel who had instructions and authority in the matter on behalf of the applicant simply because there was another consent that the same advocates had entered into.
- In Hirani V. Kassam [1952] 19 EACA 131 the Court of Appeal held; “It is now well settled law that a consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside, or if certain conditions remain to be fulfilled, which are not carried out.
- In the present case the respondent was not party to the Civil Suit No 4 of 2018 thus he remains a stranger to that consent and thus the instant consent cannot be invalidated on the basis of a matter the respondent was not privy to.
- Let me add here that considering the age of this matter it would be unjust to the respondent to set aside a consent properly entered into because of mistakes of other persons with whom he had absolutely no relationship with and that the legitimate expectation on the part of the respondent was entered into, was that the advocate who recorded the consent and had full authority.
- It would be important to emphasize that if indeed the advocate who recorded the consent had no instruction, there exist adequate statutory mechanisms to redress that including a suit for damages against the advocate. The finding of the court is that the consent was validly entered into and the application by the applicant is hereby dismissed.
- In the end the application by the applicant is dismissed with costs.
- The matter shall be immediately set down for assessment of damages.
- It is so ordered.