Lucas Chahaga v Albert W. Wasike [2019] KECA 518 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed you cannot appeal a consent judgment — instead, apply to the trial court to set it aside.
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 applicant should be granted extension of time to file a notice of appeal against the consent judgments of 21st July 2016
- 2.Whether the applicant should be granted leave to file a supplementary record of appeal
- 3.Whether the intended appeals against the consent judgments are frivolous given section 67(2) of the Civil Procedure Act
Key legal issues
#Whether extension of time could be granted to appeal against a consent judgment
No; section 67(2) of the Civil Procedure Act bars appeal from a consent decree, so the intended appeal is frivolous and extension of time must be refused
The court applied Rule 4 principles and held that since no appeal lies from a consent decree, the intended appeals would be frivolous. It further noted that the applicant had pending applications to set aside the consent judgments in the Environment and Land Court, which were the more efficacious remedy, and that the applicant had not brought the pending applications to the attention of the trial court on 10th November 2016.
Whether the failure to file notices of appeal against the consent judgments was due to inadvertent mistake
No; counsel had one and a half years to notice the omission and due diligence would have revealed it
The consent judgments were entered on 21st July 2016, the applications were filed on 16th April 2018, and the appeals had been filed by advocates rather than the applicant in person. The court held that counsel exercising due diligence over the one-and-a-half-year span would have noticed that no notice of appeal had been filed against the consent judgments, and so it was not satisfied the omission was inadvertent.
Legal principles established
#- No appeal lies from a decree passed by the court with the consent of the parties; an intended appeal against a consent judgment is frivolous for purposes of an extension-of-time application
- An applicant under Rule 4 of the Court of Appeal Rules must show that the intended appeal is not frivolous, that there is no inordinate delay, and that no undue prejudice will be caused to the respondent
Court orders
#- 1.The two applications for extension of time and leave to file a supplementary record of appeal are dismissed
- 2.Costs of the applications to the respective respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- Environment and Land Court of Kenya at Bungoma
- ELC. No. 188 of 2013
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (application for extension of time); appeal from Environment and Land Court
- Consolidated with
- Civil Appeal (Application) No. 5 of 2017 (Lucas Chahaga v Moses Kenbengwa Adisa)
Relief refused
#Extension of time to file notices of appeal against the consent judgments of 21st July 2016
No appeal lies from a consent judgment under section 67(2) of the Civil Procedure Act, so the intended appeal is frivolous; the delay was not due to inadvertent mistake and the applicant has a more efficacious remedy in the pending applications to set aside the consent judgments
Leave to file a supplementary record of appeal
The applications, including this relief, were found to have no merit
Costs
Applications dismissed with costs to the respective respondents
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.
No appeal shall lie from a decree passed by the court with the consent of the parties.
It is apparent that the applicant has a more efficacious remedy, that of prosecuting the pending applications in the Environment and Land Court.
In the premises, the applications have no merit and are hereby dismissed with costs to the respective respondents.
Issues in the judgment
#The judgment alternates between spelling the respondent's name as 'Wasike' and 'Masika', and the appellant's name as 'Lucas' and 'Lukas'; the court itself notes the discrepancy
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lucas Chahaga v Albert W. Wasike [2019] KECA 518 (KLR)", Case Analysis (2019). Civil Appeal (Application) No. 4 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/518/eng@2019-06-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.