[2008] KEHC 456 (KLR)
The court found that the consent order was properly recorded pursuant to a consent letter signed by both parties' advocates. The appellant failed to provide any affidavit from its own counsel to support allegations of fraud or mistake, nor did it explain the circumstances under which its advocate signed the consent....
Source-derived case information.
- Citation
- [2008] KEHC 456 (KLR)
- Parties
- Appellant: Jasho One Investment Ltd.; Respondent: Peter Otieno Olunga
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 696 of 2000
- Procedural Posture
- Civil Appeal / Ruling on Application for Review and Setting Aside of Consent Order
- Outcome
- application dismissed with costs
- Judges
- GG Okwengu
- Legal Topics
- Consent Orders, Review of Orders, Fraud Allegations, Advocate Authority
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jasho One Investment Ltd.
Appellant
Peter Otieno Olunga
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Review and Setting Aside of Consent Order
Legal Issues
- 1 Whether the consent order recorded on 25th June, 2008 should be reviewed and set aside on grounds of fraud or mistake.
- 2 Whether the appellant is bound by the consent entered into by its advocate.
- 3 Whether the release of the decretal sum deposited in court affects the validity of the consent order.
Ratio Decidendi
The court found that the consent order was properly recorded pursuant to a consent letter signed by both parties' advocates. The appellant failed to provide any affidavit from its own counsel to support allegations of fraud or mistake, nor did it explain the circumstances under which its advocate signed the consent. There was no evidence before the court to show that the consent was entered into through fraud or mistake. The court held that the appellant is bound by the consent entered into by its advocate, and the issue of the release of the decretal sum did not affect the validity of the consent order. Consequently, there was no just cause to interfere with the consent order, and the...
Court Disposition
application dismissed with costs
Orders
- The application to review and set aside the consent order recorded on 25th June, 2008 is dismissed with costs.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Appeal 696 of 2000
JASHO ONE INVESTMENT LTD.……………..APPELLANT
VERSUS
PETER OTIENO OLUNGA….………………..RESPONDENT
R U L I N G
The appellant seeks to have the order which was made on the 28th June, 2008 reviewed and set aside. The order which was recorded on the 25th June, 2008 by the Deputy Registrar read as follows:
“Upon reading consent dated 23rd May, 2008, received in court on 23rd May, 2008 it is hereby ordered by consent;
(i) That the award in CMCC No.967 of 1997 Peter Otieno Olunga vs Jasho One Investments Ltd be reduced by 40%.
(ii) That there be no orders as to costs in this appeal.”
The appellant contends that the instructions to the advocates were that the matter be settled by paying the respondent 60% of the sum of Kshs.367,000/= which had been deposited by the appellant in court and released to the respondent’s advocate. The appellant contends that the consent arrived at by the parties was fraudulently altered and should therefore be set aside and substituted with the proper consent order reducing the award in CMCC No.967 of 1997 Peter Otieno Olunga vs Jasho One Investment ltd being Kshs.357,400/= all inclusive by 40% with no orders as to costs.
The application is opposed by the respondent through an affidavit sworn by its advocate Ezekiel Oduk. Counsel depones that the consent letter dated 23rd May, 2008 subject of the consent order was duly executed by both counsels and filed in court. Counsel denies all allegations of fraud, manipulation or impropriety attributed to him.
I have carefully considered the application, the affidavit in support and in reply, together with the annextures thereto, and the submissions of both counsels. It is clear that a consent order was recorded on 25th June, 2008 pursuant to a consent letter dated 23rd May, 2008 which was duly signed by both parties’ advocates. Although the appellant contends that his counsel had different instructions and that the consent letter was a fraud having been tampered with, the appellant’s counsel has not sworn any affidavit to support the appellant’s contention or to explain the circumstances in which the appellant’s counsel signed the consent order. In the circumstances, the appellant has not shown that the consent order was entered into through any mistake or fraud. The appellant is therefore bound by the consent which was entered into by its advocate on its behalf. An issue was raised with regard to the circumstances in which the decretal sum which was deposited in court by the appellant was released to the respondent’s counsel. However, no application having been brought to the court with regard to the release of that money, the release of the money has no bearing on the consent order which was properly recorded. I find no just cause to interfere with the consent order which was recorded on 25th June, 2008. Accordingly, I find no merit in the application and do therefore dismiss it with costs.
Dated and delivered this 3rd day of December, 2008
H. M. OKWENGU
JUDGE
In the presence of: -
Advocate for the appellant absent
Miss Kubai H/B for Oduk for the respondent