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Court of AppealDismissedNot stated in the judgment

Munyiri v Ndunguya [1985] KECA 83 (KLR)

Court of Appeal of Kenya
24 May 1985
HPH.G PlattJNJ.O NyarangiJGJ.M Gachuhi
802 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This appeal arose from a consent order recorded by V V Patel J in the High Court on 31 May 1983, under which the case was marked settled upon payment by the plaintiff of Kshs 25,000 to the defendant in monthly instalments of Kshs 3,000, earlier costs orders were set aside with no order for costs, and the land registrar was directed to remove the defendant's caution over parcel Mwerua/Mukure/28. The defendant appealed, contending that no consent had been reached, that judgment should have been entered differently, and raising complaints about a valuation report and an eviction order. The Court of Appeal, per Platt Ag JA with Nyarangi JA and Gachuhi Ag JA agreeing, dismissed the appeal with costs. The court held that the record contained a detailed, intelligible consent order from which section 67(2) of the Civil Procedure Act (cap 21) provides no appeal, applying its interpretation of that section in Flora Wasike v Destimo Wamboko. Citing Brooke Bond Liebig Ltd v Mallya and Hirani v Kassam, it held that a consent judgment may be interfered with only on grounds justifying variation or rescission of a contract. There was no possibility of going behind the record; the parties' remedies were review or a fresh suit. The court also advised, as a practice point, that advocates or parties should sign consent orders to evidence agreement and prevent later recanting.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether an appeal lies against a consent order under section 67(2) of the Civil Procedure Act (cap 21)
  2. 2.Whether consent was actually reached between the parties or their advocates before the consent order was entered
  3. 3.Whether the court could go behind the record of the consent order to investigate the parties' rival claims about their true intentions

Key legal issues

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01

Appealability of consent orders

Holding

The consent order of 31 May 1983 was a perfectly intelligible consent order from which section 67(2) of the Civil Procedure Act provides no appeal, so the appeal had to fail.

Reasoning

The court relied on its earlier interpretation of section 67(2) in Flora Wasike v Destimo Wamboko. The order was entered in the presence of the parties' advocates and each of its paragraphs was clear on its face. Rival claims about the parties' true intentions could not be arbitrated on the affidavits at that late stage, so the parties were left to review or a fresh suit.

p. 2
02

Circumstances for interfering with a consent judgment

Holding

A consent judgment may only be interfered with on grounds that would justify varying or rescinding a contract between the parties.

Reasoning

Following Brooke Bond Liebig Ltd v Mallya, which itself followed Hirani v Kassam, the court held that since the appellants had not established grounds equivalent to those for rescinding a contract, the consent order stood. The appellants' attempt to resile from the judgment was unjustified, and the affidavits filed on the previous court's order only illustrated the futility of litigating the rival claims.

p. 2

Legal principles established

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  • No appeal lies from a consent order under section 67(2) of the Civil Procedure Act, and a consent judgment can only be interfered with on the same grounds as a contract between the parties.
  • A party seeking to escape a consent order must resort to review or a fresh suit, not an appeal.
  • It is prudent for advocates or parties present to sign consent orders so that the terms are demonstrably known and agreed at the time of entry.
  • Parties who wish to resile from a consent order may do so only by consent.

Court orders

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  1. 1.The appeal is ordered to be dismissed with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

HP
majority

Wrote the judgment

JN
majority
JG
majority
On appeal from
High Court of Kenya
Not stated in the judgment (consent order of 31 May 1983)
Jurisdiction invoked
Statutory right of appeal under the Civil Procedure Act (cap 21); appeal lies from the consent order only to the extent permitted by section 67(2)

Relief refused

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Setting aside or varying the consent order of 31 May 1983

Section 67(2) of the Civil Procedure Act provides no appeal from a consent order, and the parties' proper remedies are review or a fresh suit

p. 2

Costs

The appeal is dismissed with costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The salient features of the situation are that there is upon the record a detailed consent order, from which section 67 (2) of the Civil Procedure Act (cap 21) provides no appeal.
p. 2No appeal from consent orders
A court cannot interfere with a consent judgment except in such circumstances as would afford good ground for varying or rescinding a contract between the parties.
p. 2Contractual nature of consent judgments
It would appear that the parties must set aside the consent order either by review or the bringing of a fresh suit
p. 2Remedies for challenging a consent order
As Gachuhi Ag JA agrees, the appeal is ordered to be dismissed with costs.
p. 2Final orders - dismissal with costs

Issues in the judgment

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minor

The judgment does not state the case number, neutral citation, or the names of the parties; it refers only to 'the plaintiff' and 'the defendant'.

minor

The judgment states the appeal was commenced before another bench of this court and was suitable to be considered de novo, without identifying that appeal or its outcome.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Munyiri v Ndunguya [1985] KECA 83 (KLR)", Case Analysis (1985). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/83/eng@1985-05-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.