Meshack Ochieng T/A Mecko Enterprises v Chairman Board of GovernorsNg’iya Girls High School & 4 others [2018] KECA 88 (KLR)
The bottom line
#The Court of Appeal ruled that a signed consent order is final and binding, and cannot be undone later through a 'correction' application.
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 Court could entertain an application for correction under Rule 35(1) of the Court of Appeal Rules in an appeal that had been withdrawn by consent and was therefore spent
- 2.Whether the consent order recorded on 20th June 2016 could be altered or set aside on the applicant's motion
- 3.Whether the applicant was entitled to interest of Kshs. 32,616,629.80 for late payment of the decretal sum
Key legal issues
#Whether the Court could entertain an application under Rule 35(1) after the appeal had been withdrawn by consent
The application fails because the appeal no longer exists; the Court is functus officio, and the consent order is contractually binding and could only be rescinded on grounds such as fraud, misrepresentation or mistake, none of which was shown.
The appeal was withdrawn by consent on 20th June 2016 pursuant to a consent letter signed by all parties, ending the appeal. The Court adopted the consent as its order. A consent order carries contractual force between the parties and can only be set aside by mutual consent or on grounds justifying rescission of a contract, which the applicant had to prove but did not. Rule 35(1) covers only clerical mistakes or accidental slips, not the substantial interest claims the applicant sought to reintroduce. Litigation must come to an end.
Whether Rule 35(1) could be used to correct the order of 20th June 2016 to award interest
Rule 35(1) was inapplicable because the order faithfully rendered the parties' consent; the corrections sought concerned substantial interest, not minor slips.
The rule permits correction of clerical or arithmetic mistakes or accidental slips or omissions so as to give effect to the Court's intention at the time of judgment. The order of 20th June 2016 was a faithful rendition of the consent letter with which it fully corresponded. There was thus no error to correct. The corrections sought related to a substantial claim for interest, which the applicant had voluntarily abandoned by signing the consent.
Whether the applicant could reopen the question of interest on this application
The question of interest had been repeatedly ruled res judicata by the High Court and the attempt to reopen it was misconceived and devoid of merit.
Relying on the ruling of Olga Sewe, J. dated 22nd December 2017, the Court noted that the interest question had been repeatedly ruled res judicata and that nothing had changed since those decisions. The applicant had pursued the same issue unsuccessfully on various occasions in the High Court. The Court endorsed the principle that litigation must come to an end and dismissed the attempt as wholly devoid of merit and plainly misconceived.
Legal principles established
#- Once an appeal has been withdrawn by consent, the Court becomes functus officio and its role is spent.
- A consent order has contractual binding force and can only be set aside by consent of the same parties or on grounds justifying rescission of a contract, such as fraud, misrepresentation or mistake, with the burden of proof on the party seeking to uproot the consent.
- Rule 35(1) permits correction only of clerical or arithmetic mistakes or accidental slips or omissions so as to give effect to the Court's intention; it does not extend to substantial corrections of what a party voluntarily agreed to.
Court orders
#- 1.The application is dismissed
- 2.Costs of the application awarded to the 1st respondent (Chairman Board of Governors, Ng'iya Girls High School)
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Misc. Civil Appln. No. 445 of 2013
- Jurisdiction invoked
- Rule 35(1) of the Court of Appeal Rules (application to correct a clerical or arithmetic mistake or accidental slip or omission)
Relief refused
#An order compelling the 2nd to 5th respondents to settle interest of Kshs. 32,616,629.80 for late payment at 20.5% per annum
The appeal no longer exists having been withdrawn by consent; the Court is functus officio; the consent order has contractual binding force and no basis for rescission (fraud, misrepresentation or mistake) was shown; and the question of interest is res judicata
Correction of the order of 20th June 2016 under Rule 35(1)
The corrections sought are not minor clerical errors but substantial matters the applicant voluntarily committed himself to by signing the consent
Costs of the application and appeal awarded to the applicant
The application was dismissed with costs to the 1st respondent
Costs
Application dismissed with costs to the 1st respondent (Chairman Board of Governors, Ng'iya Girls High School), who appeared and opposed the application through learned counsel Mr. Mola holding brief for Mr. Ragot.
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.
Not only is the Court functus officio its role having been spent by the withdrawal of the appeal, but, significantly, the order having been entered into by consent, it has contractual binding force between the parties who signed it
Such conditions include fraud, misrepresentation or mistake, the onus to prove which falls in the party seeking to alter or uproot the consent.
The order of the Court is a faithful rendition of the parties' consent letter with which it fully corresponds so that it then follows that the rule, which we set out hereunder, cannot support the correction that the applicant seeks
It is accordingly dismissed with costs to the 1st respondent (Chairman Board of Governors, Ng'iya Girls High School) who appeared and opposed the application through learned counsel Mr. Mola who held brief for Mr. Ragot.
Issues in the judgment
#The cause title contains an apparent typographical error describing the court below as 'the Court of Kenya at Nairobi' and labels the 4th and 5th respondents as 'APPLICANT' in the heading while the body treats the applicant as Meshack Ochieng
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Meshack Ochieng T/A Mecko Enterprises v Chairman Board of GovernorsNg’iya Girls High School & 4 others [2018] KECA 88 (KLR)", Case Analysis (2018). Civil Appeal (Application) No. 54 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/88/eng@2018-11-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.