Onesmus Njoroge Thika v D H Ndegwa & another [1987] KECA 19 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Character of a consent order disposing of all matters in controversy
Such a consent order is a decree under Section 2 of the Civil Procedure Act and is binding on the parties.
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.
Whether Order 42 rule 1(g) and (h) applied to the consent order
It did not; the consent order did not set aside a default judgment and was not amenable to those provisions.
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.
Competence of the appeal
The appeal was incompetent and was struck out.
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.
Legal principles established
#- 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
#- 1.The appeal be struck out as being incompetent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.