[1987] KEHC 37 (KLR)
The court found that the law overwhelmingly does not support the applicants' position. A consent judgment is binding and cannot be set aside merely on the ground that the advocate exceeded his authority unless there is clear evidence of fraud, collusion, or lack of authority, which was not established in this case....
Source-derived case information.
- Citation
- [1987] KEHC 37 (KLR)
- Parties
- Appellant: City Decorators Limited; Defendant: Ravji Meghji Patel & Others
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1600 of 1982
- Procedural Posture
- Civil Case / Chamber Summons to Set Aside Consent Judgment
- Outcome
- application dismissed with costs
- Judges
- AS Rauf
- Legal Topics
- Consent Judgment, Authority of Advocate, Variation of Judgment, Slip Rule
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
City Decorators Limited
Appellant
Ravji Meghji Patel & Others
Defendant
Procedural Posture
Civil Case / Chamber Summons to Set Aside Consent Judgment
Legal Issues
- 1 Whether a consent judgment can be set aside or varied on the ground that the advocate exceeded his authority in agreeing to the amount owed.
- 2 Whether sections 90 and 100 of the Civil Procedure Act (cap 21) permit the variation or setting aside of a consent judgment under the 'slip rule'.
- 3 Whether a consent judgment forms part of a decree under judicial pronouncement and is subject to correction or variation under the cited statutory provisions.
Ratio Decidendi
The court found that the law overwhelmingly does not support the applicants' position. A consent judgment is binding and cannot be set aside merely on the ground that the advocate exceeded his authority unless there is clear evidence of fraud, collusion, or lack of authority, which was not established in this case. Furthermore, sections 90 and 100 of the Civil Procedure Act do not empower the court to vary or set aside a consent judgment except for clerical or accidental errors, which was not the situation here. Therefore, the application to vary or set aside the consent judgment was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application to vary or set aside the consent judgment is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL CASE NO 1600 OF 1982
CITY DECORATORS LIMITED ............................APPELLANT
VERSUS
RAVJI MEGHJI PATEL & OTHERS...........................DEFENDANT
JUDGMENT
Cases
No cases referred to.
Statutes
Civil Procedure Act (cap 21) sections 90 and 100
June 19, 1987, Rauf J delivered the following Judgment.
In this case a consent judgment was entered on May 19, 1986 for Kshs 136,432 with costs and interest thereon; and the amount of Kshs 68,798/ 30 deposited in the court by the defendants was ordered to be paid out to the plaintiff.
Subsequently, on March 17, 1987, the defendants filed this Chamber Summons to vary or set aside the aforesaid consent judgment on the ground that Mr Kwach who had the conduct of the defence case exceeded his authority in agreeing to the amount owed by Kshs 19,567/80.
When this summons came up for hearing before me on June 17, 1987 the learned counsel for both parties rested their respective cases on them within submissions exs 1 and 2.
Mr Fraser for the applicants argued that the consent order, being in excess of the authority of the advocate appearing for them at that time, can be cured under sections 90 and 100 of the Civil Procedure Act (cap 21). He quoted several authorities to support his contention.
Mr C S Joshi in his written brief submitted that consent judgment being part of the decree under judicial pronouncement does not fall within— ‘slip rule’ nor is it covered by any provisions of the law. He cited numerous cases to strengthen his arguments.
I commend both learned counsel for their very lucid and exhaustive written submissions on all the aspects of this application. Their briefs covered not only the immediate issue before me but all the ancillary law relating to that issue.
Having carefully studied the authorities, I have no doubt about the law on the issue in this application which is overwhelmingly against the applicants. Consequently, I dismiss the application with costs.
June 19, 1987
RAUF
JUDGE