[2013] KEHC 2640 (KLR)

[2013] KEHC 2640 (KLR)

The court found that there was no clear or unequivocal consent by the plaintiff's advocate to the defendant's application to strike out the suit. The proceedings showed confusion and lack of clarity as to which application was allowed, and the plaintiff's advocate did not properly consent to the order. The court held that a consent order can only be set aside on grounds such as mistake, and in this case, the mistake by the plaintiff's advocate in entering the consent without authority justified setting aside the order. However, the court also noted that the plaintiff had underpaid the required court filing fees, and therefore stayed the suit until the balance was paid.

Citation
[2013] KEHC 2640 (KLR)
Parties
Plaintiff: Bhupinder Singh Dogra; Defendant: Coast Development Authority
Court
High Court
Court Station
High Court at Mombasa
Jurisdiction
Kenya
Judgment Date
2 August 2013
Case Number
Civil Suit 158 of 2003
Procedural Posture
Civil Suit / Ruling on Application to Set Aside Consent Order
Outcome
Plaintiff's application to set aside the consent order is allowed; suit stayed pending payment of balance court fees.
Judges
MM Kasango
Legal Topics
Setting Aside Consent Orders, Mistake in Contract, Court Fees, Striking Out Suit
Source Language
English
Civil Procedure Commercial and Corporate Setting Aside Consent Orders Mistake in Contract Court Fees Striking Out Suit

Case Brief

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Parties

Bhupinder Singh Dogra

Plaintiff

Coast Development Authority

Defendant

Procedural Posture

Civil Suit / Ruling on Application to Set Aside Consent Order

Legal Issues

  1. 1 Whether the consent order recorded on 11th March 2004 should be set aside due to lack of proper consent or mistake by counsel.
  2. 2 Whether the plaintiff should be allowed to defend the defendant's application to strike out the suit.
  3. 3 Whether the underpayment of court filing fees affects the continuation of the suit.

Ratio Decidendi

The court found that there was no clear or unequivocal consent by the plaintiff's advocate to the defendant's application to strike out the suit. The proceedings showed confusion and lack of clarity as to which application was allowed, and the plaintiff's advocate did not properly consent to the order. The court held that a consent order can only be set aside on grounds such as mistake, and in this case, the mistake by the plaintiff's advocate in entering the consent without authority justified setting aside the order. However, the court also noted that the plaintiff had underpaid the required court filing fees, and therefore stayed the suit until the balance was paid.

Court Disposition

Plaintiff's application to set aside the consent order is allowed; suit stayed pending payment of balance court fees.

Orders

  • The consent order of 11th March 2004 and the resultant order is hereby set aside.
  • The plaintiff is granted leave to defend the defendant’s application dated 28th January 2004.