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Court of AppealDismissedCivil Appeal (Application) No. 4 of 2017

Lucas Chahaga v Albert W. Wasike [2019] KECA 518 (KLR)

Court of Appeal of Kenya
28 June 2019
1,419 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a consolidated ruling of the Court of Appeal at Eldoret (Githinji, Okwengu and Mohammed, JJ.A) delivered on 28th June 2019 in two applications dated 16th April 2018 by Lucas Chahaga in Civil Appeal (Application) No. 4 of 2017 (against Albert W. Wasike) and Civil Appeal No. 5 of 2017 (against Moses Kenbengwa Adisa). The applications sought extension of time to file notices of appeal against consent judgments entered on 21st July 2016 in ELC. No. 188 of 2013 and ELC. No. 189 of 2013 at the Environment and Land Court, Bungoma, and leave to file supplementary records of appeal. Both suits concerned agreements for sale of 2 acres out of land parcel Bungoma/Kamukunywa/875, and consent judgments were recorded for payment of Shs. 1,000,000 in each. The court, applying Rule 4 of the Court of Appeal Rules, held that the intended appeals were frivolous because section 67(2) of the Civil Procedure Act bars appeals from consent decrees, and that the applicant's more efficacious remedy was to prosecute his pending applications to set aside the consent judgments in the Environment and Land Court. The court was also not satisfied that the failure to file notices of appeal was an inadvertent mistake, given counsel's one-and-a-half-year delay. Both applications were dismissed with costs to the respective respondents.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 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. 2.Whether the applicant should be granted leave to file a supplementary record of appeal
  3. 3.Whether the intended appeals against the consent judgments are frivolous given section 67(2) of the Civil Procedure Act

Key legal issues

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01

Whether extension of time could be granted to appeal against a consent judgment

Holding

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

Reasoning

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.

p. 2
02

Whether the failure to file notices of appeal against the consent judgments was due to inadvertent mistake

Holding

No; counsel had one and a half years to notice the omission and due diligence would have revealed it

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The two applications for extension of time and leave to file a supplementary record of appeal are dismissed
  2. 2.Costs of the applications to the respective respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

majority

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

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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

p. 2

Leave to file a supplementary record of appeal

The applications, including this relief, were found to have no merit

p. 2

Costs

Applications dismissed with costs to the respective respondents

Quotable passages

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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.
p. 2Bar on appeal from consent decree - section 67(2) Civil Procedure Act
It is apparent that the applicant has a more efficacious remedy, that of prosecuting the pending applications in the Environment and Land Court.
p. 2Alternative remedy of setting aside consent judgment in trial court
In the premises, the applications have no merit and are hereby dismissed with costs to the respective respondents.
p. 2Final orders - dismissal of the applications

Issues in the judgment

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minor

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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.