Cheruiyot v Korir (Civil Appeal 131 of 2017)
[2021] KECA 222 (KLR) (5 November 2021) (Judgment)
Neutral citation: [2021] KECA 222 (KLR)
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT NAKURU
CIVIL APPEAL 131 OF 2017
W KARANJA, MSA MAKHANDIA & S OLE KANTAI, JJA
NOVEMBER 5, 2021
BETWEEN
WALTER KIPYEGON CHERUIYOT .................................................... APPELLANT
AND
STANLEY KORIR ................................................................................ RESPONDENT
(An appeal against the Ruling and Order of the Environment and Land Court at
Kericho (J. M. Onyango, J.) delivered on 14th July 2017 in ELC Case No. 61 of 2014)
JUDGMENT
1. Walter Kipyegon Cheruiyot (the appellant) was the registered owner of a parcel of land described as
L.R No. Kericho/Silibwet/264 (the suit land). He entered into a sale agreement with Stanley Korir
(the respondent) on 3rd March, 2014 for the sale of the suit land at a consideration of Kshs. 600,000/
=. The respondent paid a deposit of Kshs. 300,000/= upon signing the agreement and agreed that the
balance would be paid in 3 equal installments of Kshs. 100,000/= within the months of May, July and
September 2014.
2. The respondent fullled his part of the agreement but the appellant refused to hand over vacant
possession of the suit land and eect transfer of the title to the respondent.
3. Consequently, by a plaint dated 26th November, 2014 the respondent led a suit against the appellant
seeking specic performance of the agreement to compel the appellant to transfer the suit land to him.
4. In his defence, the appellant denied that the respondent had honoured his part of the agreement and
stated that the respondent only paid Kshs. 300,000/= upon signing the agreement and promised to
pay the balance of Kshs. 300,000/= in 3 equal installments of Kshs. 100,000/= by September, 2014
but failed to do so. Further, that in May 2014, the respondent took advantage of the appellant’s wife’s
illiteracy and made her sign that she had on behalf of the appellant been paid Kshs. 170,000/= whereas
the respondent had only paid Kshs. 70,000/=.
5. When the matter came up for the plenary hearing before the trial court on 22nd November, 2016 both
parties and their counsel appeared and counsel for the respondent informed the court that the parties
kenyalaw.org/caselaw/cases/view/224046/ 1
had a consent to record. The court then recorded a consent dictated by the advocates in the following
terms:
“ By consent of the parties, this suit be compromised on the following terms:
a) That the plainti do pay to the defendant a sum of Kshs.100,000 within the
next seven days being the balance of the purchase price.
b) That the defendant do execute transfer documents in favour of the plainti
of 0.2 acres comprised in L.R number KERICHO/SILIBWET/264 which
should be done within seven days from today.
c) That the sum of Ksh. 130,000 which is held by the rm of M/S J.K Koech &
Company Advocates be released to the defendant immediately.
d) That each party to bear his own costs.
e) That upon the terms being complied with, the case be marked as settled.”
6. According to the court record, the appellant’s advocate conrmed the said terms of the consent and
both advocates signed against their names. The court then adopted the consent as the judgment of the
court and marked the suit as settled.
7. Subsequently, the appellant herein led a motion on notice on 3rd February, 2017 under Section 3A
of the Civil Procedure Act and Order 10 Rule 11 of the Civil Procedure Rules seeking in the main the
following orders:-
a) That pending the hearing and determination of this application inter partes, this honourable
court be pleased to stay execution of the decree herein.
b) That this Honourable court be pleased to set aside the consent Judgment and decree entered
herein against the defendant/applicant and any consequential orders thereof and allow the
defendant/applicant leave to defend the suit herein.
8. The application was premised on grounds as appeared on its face and supported by the appellant’s
adavit of even date in which the appellant deposed that he was unhappy with the consent that was
recorded in court on 22nd November, 2016 and that even though he was present in court when the
consent was recorded, his former Advocate did not explain to him the terms of the consent before it
was signed and only explained the same to him when they left the courtroom.
9. Further, that the terms of the consent had not been honoured and bad blood had developed between
his family and that of the respondent. As a result of the foregoing, the appellant stated that he was
ready to refund the purchase price of Kshs. 370,000/= already paid by the respondent.
10. Upon hearing the application, the learned Judge deduced the issues for determination to be:-
a) Whether the consent recorded in court on 22nd November 2016 was valid and binding on the
parties; and
b) Whether there are sucient reasons to warrant the said consent being set aside.
11. In his ndings, the learned Judge expressed that if indeed the appellant was opposed to the consent,
it beat logic why he did not protest immediately and why it took him three months to apply to have
it set aside.
kenyalaw.org/caselaw/cases/view/224046/ 2
12. The Court found that it was baseless to argue that the consent was not a valid consent; and that the
consent could not be set aside in the circumstances as it was trite that a consent order once adopted
by the court cannot be varied or discharged unless obtained by fraud or collusion, or by an agreement
contrary to the policy of the court or if the consent was given without sucient material facts, or in
misapprehension or in ignorance of material facts, or in general for a reason which would enable the
court to set aside an agreement.
13. Ultimately, the learned Judge held as follows:-
“ I have carefully considered the pleadings, the instant application, adavits and submissions
of both counsel together with the authorities cited to me. I nd no sucient reason why
the consent should be set aside ….
In my assessment the only reason why the defendant wants to set aside the consent is
probably due to pressure from his family members who have since fallen out with the
Plainti. That in my view is not a good enough reason to set aside a valid order of the court.
It is not lost to me that the defendant was present in court on the date the consent was
recorded and signed by his advocate and at no point did he raise any objection. Parties should
not abuse the process of the court at whim.
The upshot is that the defendant's application fails and is dismissed with costs to the
plainti. I further direct that the plainti satises the terms of the consent order within
the next seven (7) days failing which the defendant shall be at liberty to seek an appropriate
remedy.”
14. Aggrieved by the above nding, the appellant proered the instant appeal on grounds, inter alia, that
the learned Judge erred: by awarding what was not prayed for; by failing to consider the evidence of
the appellant and critically analyze the same despite the fact that it was overwhelming; by holding
that the respondent had proved a prima facie case but failing to award what was prayed for and by
misapprehending the evidence before him hence arriving at erroneous ndings.
15. In his submissions in support of the appeal, the appellant submits that it is trite law that an Advocate
can enter into a Consent on behalf of his client provided he acts bona-de, that the Consent should
not be contrary to express negative directions; it should not be made through misrepresentation or in
ignorance of material facts; that the Record of appeal discloses fraud, collusion and lack of bona-de
on the appellant’s former advocate in entering into the consent; that these facts were not considered
although the appellant made it clear that he was illiterate and thus placed reliance on his Advocate who
in turn failed to make him understand the consent terms although he was present in court on the day
the said consent was entered.
16. He submits that the Judge ought to have considered the facts and adavits placed before him and nd
that the Advocate had abused trust placed on him by entering into an agreement without honestly
disclosing all material facts prior to the consent and relies on the case of Kenya Commercial Bank vs.
Specialised Engineering Co. Ltd (1982).
17. Opposing the appeal, the respondent too led submissions in which he submits that the learned trial
Judge in her ruling considered the entire application by setting out the orders sought, the grounds
upon which the application was premised, the supporting adavit and then crystalized the issues for
determination and cannot be accused of having failed to consider any aspect of the application.
kenyalaw.org/caselaw/cases/view/224046/ 3
18. He further submits that the appellant does not cast any aspersion on the terms of the consent but
instead states that he was no longer interested in selling the suit land and that his wife and children
had very strong objections to the sale transaction and the terms of the compromise and that he and the
respondent had since developed bad blood.
19. It is the respondent’s submissions that it can be inferred from the averments that the appellant was not
basically complaining about the terms of the consent, but has his own personal reasons which were
not enough to set aside a duly executed consent and therefore the court was right in dismissing the
application.
20. He submits that the alleged lack of bona des on the part of the advocate, the abuse of trust, the
alluded mischief and or fraud were never substantiated in the said application nor has the appellant
sought to substantiate the same in his appeal; that the appellant is falsely tainting the image of his
former Advocate when in essence he is aware that the consent was voluntarily entered into with his
full knowledge and consent.
21. Lastly, he submits that the authorities relied on by the appellant are good in law but they do not aid the
appellant's appeal since the facts and circumstances of this appeal are dierent and cannot be supported
by the cited authorities.
22. We have considered the entire record of appeal along with the rival submissions and the relevant law
including the caselaw cited by the parties. This being a rst appeal, it is our duty to re-analyze and re-
assess the evidence on record and reach our own conclusions as stated in Selle vs. Associated Motor Boat
Co. [1968] EA 123, where the Court expressed itself as follows:
“ An appeal to this Court from a trial by the High Court is by way of retrial and the principles
upon which this Court acts in such an appeal are well settled. Briey put they are that this
Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it
should always bear in mind that it has neither seen nor heard the witnesses and should make
due allowance in this respect. In particular, this Court is not bound necessarily to follow
the trial judge’s ndings of fact if it appears either that he has clearly failed on some point to
take account of particular circumstances or probabilities materially to estimate the evidence
or if the impression based on the demeanor of a witness is inconsistent with the evidence in
the case generally (Abdul Hameed Saif vs. Ali Mohamed Sholan (1955), 22 E.A.C.A 270.”
23. The crux of this appeal is whether the learned Judge erred in law and fact in declining to set aside the
consent order. Posited as a question, is there sucient evidence on record establishing grounds for
setting aside the consent order?
24. The appellant in his grounds of appeal averred that the learned Judge erred by awarding what was not
prayed for. Having prayed for setting aside of the consent in his application, it did not sit well with him
when the court dismissed the application and further ordered that the respondent satises the terms of
the consent order within the next seven (7) days failing which the appellant would be at liberty to seek
an appropriate remedy. It is clear to us, however, that this order naturally owed from the dismissal of
the application and thus it is not accurate to aver that the Judge awarded that which was not prayed for.
25. Other grounds of the appeal were that the Judge failed to consider the evidence of the appellant and
critically analyze the same despite the fact that it was overwhelming and that he misapprehended the
evidence before him hence arriving at erroneous ndings. We note that the evidence given by the
appellant was that even though he was present in court when the consent was recorded, his former
advocate did not explain to him the terms of the consent. Further, that the terms of the consent had
kenyalaw.org/caselaw/cases/view/224046/ 4
not been honoured and bad blood had developed between his family and that of the respondent. As
a result of the foregoing, the appellant stated that he was ready to refund the purchase price of Kshs.
370,000/= already paid by the respondent.
26. The Judge aptly covered these pieces of evidence in her judgment where she held:-
“ I nd no sucient reason why the consent should be set aside as I am not persuaded that
the threshold set out in the LIEBIG case has been met.
In my assessment the only reason why the defendant wants to set aside the consent is
probably due to pressure from his family members who have since fallen out with the
Plainti. That in my view is not a good enough reason to set aside a valid order of the court.
It is not lost to me that the defendant was present in court on the date the consent was
recorded and signed by his advocate and at no point did he raise any objection. Parties should
not abuse the process of the court at whim.”
27. There is no doubt from the foregoing that the learned Judge did consider all the material that was
placed before the court and after applying the relevant law found the evidence adduced by the appellant
to be insucient. The fact that she did not allow the application does not mean that the learned Judge
failed to consider the evidence placed before the court.
28. The appellant also submits that the record discloses fraud, collusion and lack of bona des on the part
of the appellant’s former advocate in entering into the consent. We have re-evaluated the record and
note that other than alleging fraud, there is no substantive evidence to support the allegations of fraud,
collusion and lack of good faith on the appellant’s former advocate as alleged.
29. Did the appellant’s application meet the threshold for setting aside a consent order/judgment to entitle
us to interfere with the learned Judge’s orders? We revisit our earlier decisions on this point. This Court
in Kuwinda Rurinja Co. Limited vs kuwinda Holdings Limited & 13 others [2019] eKLR, Civil Appeal
No. 8 of 2003, reiterated and buttressed the law as set out earlier as follows:-
“In the seminal case of Flora N. Wasike vs. Destino Wamboko [1988] eKLR this Court
stated:
“ It is now settled law that a consent judgment or order has contractual eect and
can only be set aside on grounds which would justify setting a contract aside,
or if certain conditions remain to be fullled, which are not carried out: see the
decision of this Court in J M Mwakio vs Kenya Commercial Bank Ltd Civil
Appeals 28 of 1982and 69 of 1983.”
In Purcell vs. F C Trigell Ltd [1970] 2 All ER 671, Winn LJ said at 676;
“It seems to me that, if a consent order is to be set aside, it can really only be set
aside on grounds which would justify the setting aside of a contract entered into
with knowledge of the material matters by legally competent persons...”
In Kenya Commercial Bank Ltd vs. Specialised Engineering Co. Ltd [1982] KLR 485,
Harris, J correctly held, inter alia, that -
“1. 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 the policy of
kenyalaw.org/caselaw/cases/view/224046/ 5
the court or where the consent was given without sucient 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.
2. 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." (Emphasis supplied)
See also Contractors Ltd vs. Margaret Oparanya__ [2004] eKLR.
30. In a more recent decision in Intercountries Importers and Exporters Limited vs. Teleposta Pension Scheme
Registered Trustees & 5 others[2019] eKLR, this Court pronounced itself as follows:-
“ Essentially, the above cited authorities are clear that a consent Order will only be set aside if
it can be demonstrated that it was procured through fraud, non-disclosure of material facts
or mistake or for a reason which would enable a court set it aside…” (Emphasis Ours)
31. If we juxtapose these requirements to the reasons proered by the appellant, which we have referred to
earlier in this judgment, it becomes evident that his application did not pass muster and was consigned
for dismissal. We also wonder why if indeed the appellant was being sincere with his averments of bad
faith by his advocate, given that the consent judgment was entered on 22nd November, 2016 and he
says the advocate only explained the contents after the Court had adjourned, why he waited until 3rd
February, 2017 to le an application to seek to set aside the consent.
32. This lapse of time connotes that the appellant did in fact understand what he was getting himself
into but after consultation with his family or other third parties, he changed his mind for the reasons
given in his application which include existence of bad blood between him and the respondent and
his family having strong objections. These are certainly not valid reasons for the court to set aside a
consent judgment.
33. We think we have said enough to demonstrate that this appeal is devoid of merit. The same is hereby
dismissed with costs to the respondent.
DATED AND DELIVERED AT NAIROBI THIS 5TH DAY OF NOVEMBER, 2021.
W. KARANJA
......................
JUDGE OF APPEAL
ASIKE-MAKHANDIA
......................
JUDGE OF APPEAL
S. ole KANTAI
......................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
Signed
DEPUTY REGISTRAR
kenyalaw.org/caselaw/cases/view/224046/ 6
