Kasmir Wesonga Ongoma & another v Wanga [1987] KECA 82 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a court order labelled 'by consent' is invalid unless the record actually proves both parties agreed to it.
What this practically means
#Executive summary
#Key legal issues
#Whether the order of October 30, 1985 was truly a consent order
By the majority, the order lacked all essential ingredients of a consent order - there was no record of the parties' agreement, no signing or thumb printing, and no evidence the order was read out and interpreted to the parties - and was invalid
The record showed appearances followed only by the order. The plaintiffs' claim had been for 81 acres each, yet the order gave 30 and 25 acres, so there should have been clear evidence they changed their minds. There was no note of the advocate's observations, no record of interpretation to the parties, and no explanation of the fate of the outstanding July 27, 1985 order for a surveyor's report. The appellants' contention that they never consented was therefore irresistible.
Effect of section 67(2) of the Civil Procedure Act on appeals from consent decrees
The majority held section 67(2) inapplicable because the order was not in truth a consent order; the dissent held the bar absolute, citing Re Racal Communications, subject only to the Flora Wasike principle that consent orders have contractual effect and may be set aside only on grounds justifying setting aside a contract
The majority found the order invalid, so the statutory bar never engaged. Platt JA dissenting reasoned that the prohibition is clear and covers decrees passed by consent; escaping a consent judgment should proceed by review or fresh suit on grounds such as fraud, collusion or misapprehension of material facts (Hirani v Kassam; Brooke Bond Liebig), and the appellant bears a formidable burden where the judgment ex facie records consent.
Duty of the High Court to keep an accurate record of proceedings
The High Court is a court of record whose proceedings must furnish a precise judicial record; the trial judge failed to enable an accurate record, which made the consent order unsustainable
The appellate court could not fairly assume the trial judge was moved to record the order or that the terms were interpreted and explained to the parties. Judges may err; their honesty is not questioned but their decisions may be impugned for error. Upholding the order merely because a judge made it would set bad precedent; courts must habitually make adequate records of proceedings.
Legal principles established
#- A consent judgment is a judgment whose terms are settled and agreed by the parties, and there must be clear evidence on the record that the parties actually agreed to the terms
- A trial judge who has ordered a surveyor's report is bound by his own order and must wait to hear from the surveyor before disposing of the suit
- Judicial discretion is legal and regular, not arbitrary, vague or fanciful
- An order recorded as 'by consent' which lacks the essential ingredients of consent is invalid and section 67(2) of the Civil Procedure Act does not protect it
Court orders
#- 1.Appeal allowed
- 2.Order of the trial court made on October 30, 1985 set aside
- 3.Suit to be tried de novo by a different judge or by a Commissioner of Assize
- 4.Costs of the appeal and of the trial before the High Court to the appellants
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- First appeal to the Court of Appeal against an order of the High Court (statutory right of appeal; section 67(2) Civil Procedure Act in issue)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kasmir Wesonga Ongoma & another v Wanga [1987] KECA 82 (KLR)", Case Analysis (1987). Civil Appeal (Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1987/82/eng@1987-09-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.