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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the order of October 30, 1985 recorded as being 'by consent' was in fact made with the consent of the parties
- 2.Whether section 67(2) of the Civil Procedure Act bars an appeal from a decree or order entered by consent
- 3.Whether the trial judge, having ordered a surveyor's report, could record a consent order without disposing of that order or recording the parties' agreement
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
The bench
#Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.
Wrote the judgment
Wrote the judgment
Platt JA would have dismissed the appeal. He held that the consent judgment fell within section 67(2) of the Civil Procedure Act barring appeals from decrees entered by consent; that a consent judgment has contractual effect and can only be set aside on grounds justifying setting aside a contract, preferably by review or a fresh suit rather than appeal; and that the appellants failed to discharge the formidable burden of displacing a judgment that ex facie was a consent judgment.
In the end, it is my opinion that the appellants have failed to discharge the burden of proof to the level laid down in Flora Wasike v Destimo Wamboko.p. 7
Wrote the judgment
- 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)
Relief refused
#Upholding the consent order of October 30, 1985 (Platt JA dissenting)
The appellants failed to discharge the formidable burden of displacing a judgment ex facie a consent judgment; a person who has consented to a compromise cannot complain on appeal
Further evidence (affidavits/replies) of what occurred on October 30, 1985
The appellants refused further evidence from the respondent's advocate, which caused the dissenting judge to doubt their bona fides
Costs
Costs of the appeal and of the trial before the High Court to the appellants (Platt JA dissenting would have awarded the costs of the appeal to the respondent); the order of October 30, 1985 itself contained no order as to costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, in my judgment, the appeal should be allowed, the order of the trial court made on October 30, 1985 set aside and the suit shall be tried de novo by a different judge or by a Commissioner of Assize.
Costs of the appeal and of the trial before the High Court to the appellants.
A consent judgment is a judgment, the terms of which are settled and agreed to by the parties to the action. Where is the evidence that the terms were settled?
the order of the judge made on October 30, 1985 whose opening words are "By consent …." lacks all the essential ingredients of an order made by the consent of the parties to an action and is invalid.
discretion, when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague and fanciful; but legal and regular.
It is certainly clear that a person who has consented to a compromise cannot think better of it later and complain on appeal.
Issues in the judgment
#The two majority judges differ on the acreage stated in the consent order: the lead judgment quotes the order as giving one portion of 30 acres to the first and second plaintiffs, while the dissent quotes it as giving 30 acres to the first plaintiff and 25 acres to the second
The dissent states the order was a 'consent judgment dated October 30, 1985' while the lead judgment treats it as an order lacking the ingredients of consent; the final disposition records only two judges (Nyarangi and Gachuhi) allowing the appeal, with Platt JA dissenting
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.