[2008] KEHC 1141 (KLR)
The court found that the plaintiff had not provided any evidence of fraud, mistake, or misrepresentation by the 3rd Defendant or his own advocates in the entry of the consent order. The plaintiff did not dispute that his former advocates were duly appointed and instructed, and therefore they had ostensible authority...
Source-derived case information.
- Citation
- [2008] KEHC 1141 (KLR)
- Parties
- Plaintiff: Charles Mathenge Wahome; Defendant: Mark Mboya Likanga; Defendant: Kenafric Bakery Ltd; Defendant: Fina Bank Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 87 of 2005
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Consent Order
- Outcome
- application dismissed with costs to the 3rd Defendant
- Legal Topics
- Consent Orders, Setting Aside Judgments, Advocate Authority, Fraud in Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Mathenge Wahome
Plaintiff
Mark Mboya Likanga
Defendant
Kenafric Bakery Ltd
Defendant
Fina Bank Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Consent Order
Legal Issues
- 1 Whether the consent order withdrawing the suit against the 3rd Defendant can be set aside on grounds of lack of plaintiff's knowledge or consent.
- 2 Whether there is evidence of fraud, mistake, or misrepresentation sufficient to set aside the consent order.
- 3 Whether the plaintiff's former advocates had ostensible authority to compromise the suit on his behalf.
Ratio Decidendi
The court found that the plaintiff had not provided any evidence of fraud, mistake, or misrepresentation by the 3rd Defendant or his own advocates in the entry of the consent order. The plaintiff did not dispute that his former advocates were duly appointed and instructed, and therefore they had ostensible authority to compromise the suit on his behalf. The absence of evidence to support the grounds required to set aside a consent order meant that the application could not succeed. The court held that even if there was evidence of fraud by the plaintiff's advocates, it would not affect the validity of the consent order as far as the 3rd Defendant was concerned, but would only give the...
Court Disposition
application dismissed with costs to the 3rd Defendant
Orders
- The application to set aside the consent order is dismissed.
- Costs awarded to the 3rd Defendant.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
CIVIL CASE 87 OF 2005
CHARLES MATHENGE WAHOME ….....…………PLAINTIFF
V E R S U S
1. MARK MBOYA LIKANGA
2. KENAFRIC BAKERY LTD
3. FINA BANK LTD ………….…………………DEFENDANTS
R U L I N G
On 16th July, 2007 the parties herein filed a consent letter dated 5th June, 2007. The letter was duly signed by the advocates for the Plaintiff and the Defendants. The letter, addressed to the court, requested that the following consent order be recorded:-
“By consent, the plaintiff’s suit as against
Fina Bank Limited, the 3rd Defendant,
be and is hereby marked as withdrawn
with no order as to costs.”
The court obliged and entered the order on 17th July, 2007
The Plaintiff, who is now acting in person, has come back to court by chamber summons dated 17th July, 2008 seeking, in effect, an order to set aside the said consent order upon the grounds that the consent letter was written without his knowledge, consent or “blessings” and was entered by his then advocates corruptly and in bad faith. There is a supporting affidavit sworn by him.
The 3rd Defendant has opposed the application as set out in the grounds of opposition dated 8th October, 2008. Those grounds are essentially two; one, that the application is bad in law, and two, that the Plaintiff has not laid any grounds upon which the application can be allowed. No replying affidavit was filed.
I have considered the submissions of the Plaintiff and those of the Defendants’ learned counsel, including the cases cited. It is now well–established that a consent order or judgment has a contractual effect and can only be set aside on such grounds as would justify the setting aside of a contract, for example fraud, mistake or misrepresentation. See for instance the case of Flora N. Wasike –vs – Destimo Wamboko (1982-1988) KAR 625. It is also stated in that case that a duly appointed and instructed advocate has ostensible authority to compromise a suit on behalf of his client as far the opposite side is concerned.
In the present case the Plaintiff has not urged that M/s Muu & Associates were not his duly appointed and instructed advocates. As such the said advocates are deemed to have had ostensible authority to compromise his suit against the 3rd Defendant.
The Plaintiff has not placed before the court any evidence of fraud, mistake or misrepresentation on the part of the 3rd Defendant in the entry of the consent order. There is also no evidence that his counsel fraudulently entered the consent. Even if there was such evidence, it would not visiate the consent as far as the 3rd Defendant is concerned. It would only be a basis for the Plaintiff to sue his former advocates.
Having considered all matters placed before the court I find no merit in this application, and I must refuse it. It is hereby dismissed with costs to the 3rd Defendant. It is so ordered.
DATED AT NAIROBI THIS 12TH DAY OF NOVEMBER, 2008
H. P. G. WAWERU
J U D G E
DELIVERED THIS 14TH DAY OF NOVEMBER, 2008