GREENFIELD INVESTMENTS LIMITED vs BABER ALIBHAI MAWJI [1998] KECA 143 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a consent order binds parties and can only be undone for fraud, collusion, or a fundamental misunderstanding of the facts.
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 notice of appeal filed by the appellant was incurably bad, defective and deficient and incapable of amendment
- 2.Whether the notice of appeal and the appeal should be struck out
- 3.Whether the appellant's notice of motion of 12th November 1997 seeking leave to amend the notice of appeal should be struck out or dismissed
- 4.Whether the consent order recorded by Lakha, J.A. on 25th June 1998 granting leave to amend should be vacated, discharged and set aside
- 5.Whether Mr. Nyakeno, holding brief for Mr. Gautama, had authority to consent to the amendment of the notice of appeal
Key legal issues
#Whether a consent order recorded by a single judge of the Court of Appeal could be set aside on the allegation that counsel holding brief lacked authority
The consent order stands. The court was satisfied that Mr. Nyakeno was properly briefed and acted within his instructions, and the respondent failed to demonstrate fraud, collusion, misapprehension or ignorance of material facts, or to pursue the available remedies against the single judge's order.
The court applied the settled principles from Hirani v Kassam and Flora Wasike v Destimo Wamboko that consent orders have contractual effect and bind parties unless vitiated by fraud, collusion, or consent given in misapprehension or ignorance of material facts. The respondent made unsubstantiated allegations against counsel without giving him an opportunity to reply, and did not complain to Lakha, J.A. or invoke rule 54(2). The application was simple and uncomplicated, so no misapprehension could arise.
Whether the notice of appeal containing fundamental errors (wrong party described as appellant, wrong party shown as serving, omitted month of ruling) was incurably defective
The court did not determine this question; it noted there are contentious issues in the appeal but declined to comment on them at that interlocutory stage, the amendment having already been allowed by the consent order.
Although the court identified three glaring fundamental errors in the notice of appeal, the amendment application had been granted by consent before Lakha, J.A. on 25th June 1998, and the respondent's attempt to undo that consent order failed. The merits of the defects in the notice of appeal were therefore left for the hearing of the appeal itself.
Legal principles established
#- A consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside, or if certain conditions remain to be fulfilled which are not carried out
- An order made in the presence and with the consent of counsel is prima facie binding on all parties and cannot be varied or discharged unless obtained by fraud or collusion, by an agreement contrary to the policy of the court, or where consent was given without sufficient material facts or in misapprehension or ignorance of material facts
- A party aggrieved by an order of a single judge of the Court of Appeal must pursue the remedies of complaining to that judge or seeking variation, discharge or reversal under rule 54(2) of the Rules before challenging the order collaterally
Court orders
#- 1.The respondent's application to strike out the notice of appeal dated 24th March 1997 and Civil Appeal No. 160 of 1997 is dismissed
- 2.The application is dismissed with costs to the appellant
- 3.The parties are urged to take an early hearing date for the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 3655 of 1995 (O.S.)
- Jurisdiction invoked
- Rules of this Court (Court of Appeal Rules), rules 1(2), 42(1) and 80
Relief refused
#Striking out of the notice of appeal dated 24th March 1997 and Civil Appeal No. 160 of 1997
The court found the application without merit; the consent order before Lakha, J.A. was validly made and the respondent had not demonstrated fraud, collusion or misapprehension of material facts
Vacation, discharge and setting aside of the consent order made by Lakha, J.A. on 25th June 1998
A consent order binds the parties unless obtained by fraud or collusion or in misapprehension or ignorance of material facts; none was shown, and the respondent had not pursued the remedies of complaining to the single judge or invoking rule 54(2)
Costs
The application is dismissed with costs to the appellant.
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.
With due respect to Mr. Gautama, this application is without merit and is accordingly denied. We dismiss it with costs to the appellant.
It is now settled law that a consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside, or if certain conditions remain to be fulfilled, which are not carried out
Prima facie , any order made in the presence and with consent of counsel is binding on all parties to the proceedings or action, and on those claiming under them
It was also open to Mr. Gautama, but he did not exercise the option, if he was dissatisfied with the decision of Lakha, J.A., a learned single judge of this Court, to seek to vary, discharge or reverse his order by the Court under the provisions of rule 54 (2) of the Rules.
We now hope that the parties will take an early hearing date for the appeal.
Issues in the judgment
#The notice of appeal reproduced in the judgment states the ruling was given on 'the 12th day of 1997' with the month omitted, and describes the respondent (plaintiff) as the party intending to appeal, errors the court itself identified
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "GREENFIELD INVESTMENTS LIMITED vs BABER ALIBHAI MAWJI [1998] KECA 143 (KLR)", Case Analysis (1998). Civil Appeal No. 160 of 1997. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/143/eng@1998-11-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.