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Court of AppealOtherNot stated in judgment· [1987] KECA 19 (KLR)

Onesmus Njoroge Thika v D H Ndegwa & another [1987] KECA 19 (KLR)

Court of Appeal
29 May 1987
644 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that a consent order you agree to is as binding as a court judgment and can't be undone casually.

What this practically means

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Executive summary

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This Court of Appeal decision (Nyarangi, Gachuhi and Apaloo JJA) determined a Notice of Motion dated May 17, 1985 under rules 80 and 42 of the Court of Appeal Rules seeking to strike out the appellant's appeal. The underlying dispute concerned land title Kiine/Kiangai/163, in which Onesmus Njoroge Thika alleged that D N Ndegwa fraudulently procured registration of the title. By a consent order of September 9, 1983, the appellant was to file and serve particulars of the claim within 14 days, failing which his suit would stand dismissed with costs. He filed but did not serve the particulars, and the suit was dismissed on October 19, 1983. His application to set aside that dismissal was dismissed by the High Court on June 12, 1984. The appellant appealed against that ruling without having lodged notices of appeal against the consent order or the dismissal order. The Court of Appeal held that the consent order conclusively determined the rights of the parties in all matters in controversy and was therefore a decree under Section 2 of the Civil Procedure Act, binding on the appellant. It could not be challenged by a mere reference in grounds of appeal from a later order, and Order 42 rule 1(g) and (h) did not apply to it. A consent judgment may only be set aside in an action specifically brought for that purpose on a ground invalidating the agreement. The application was allowed and the appeal struck out as incompetent, with costs to the respondents.

Key legal issues

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01

Character of a consent order disposing of all matters in controversy

Holding

Such a consent order is a decree under Section 2 of the Civil Procedure Act and is binding on the parties.

Reasoning

The court examined the consent order of September 9, 1983, which required filing and serving of particulars within 14 days on pain of dismissal, and held that it conclusively determined the parties' rights with regard to all matters in controversy. It therefore had the character of a decree, not a mere procedural order, and could not be circumvented by challenging a later order founded on it.

p. 2
02

Whether Order 42 rule 1(g) and (h) applied to the consent order

Holding

It did not; the consent order did not set aside a default judgment and was not amenable to those provisions.

Reasoning

Counsel for the appellant argued that order 42 rule 1(g) and (h) applied. The court rejected this, noting that the consent order did not set aside judgment in default of appearance or pleading, nor judgment in consequence of non-appearance. The consent order stood on its own footing as a decree binding on the parties and could only be attacked by a separate action.

p. 2
03

Competence of the appeal

Holding

The appeal was incompetent and was struck out.

Reasoning

The appellant never appealed against the orders of September 9 and October 19, 1983, which were binding on him. Setting aside the subsequent order of June 12, 1984 would not assist him because that order was founded on the unchallenged dismissal. The motion under rules 80 and 42 was therefore allowed and the appeal struck out with costs to the respondents.

p. 2

Legal principles established

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  • A consent order which conclusively determines the rights of the parties with regard to all matters in controversy is a decree under Section 2 of the Civil Procedure Act and is binding.
  • An unappealed consent order is binding and cannot be challenged by reference in grounds of an appeal from a subsequent order.
  • A consent order or judgment may only be set aside in an action specifically brought for that purpose on a ground that would invalidate the agreement.

Court orders

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  1. 1.The appeal be struck out as being incompetent
  2. 2.Costs of the application to the respondents
On appeal from
High Court
Not stated in judgment
Jurisdiction invoked
Not stated in judgment; application under rules 80 and 42 of the Court of Appeal Rules

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, "Onesmus Njoroge Thika v D H Ndegwa & another [1987] KECA 19 (KLR)", Case Analysis (1987). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1987/19/eng@1987-05-29

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