Perera v Nation Media Group & 2 others (Civil Appeal 122 of 2016) [2021] KECA 135 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that once you sign a consent order, courts cannot extend its deadlines unless it is set 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 learned Judge erred in law and in fact in sustaining the respondent's preliminary objection raised against the appellant's notice of motion dated 24th February 2015
- 2.Whether the learned Judge erred in declining to exercise discretion to grant the relief sought by the appellant in the application dated 24th February 2015 on merit
Key legal issues
#Whether the court had jurisdiction to enlarge a timeline for compliance with a consent order
The court had no jurisdiction; extension of time under section 95 CPA and Order 50 rule 6 CPR does not apply to time fixed by consent, and the suit stood dismissed by the terms of the consent itself
The consent of 2nd October 2014 expressly provided that on default of deposit within 30 days the suit would stand dismissed. The appellant sought only extension of time, not setting aside of the consent nor reinstatement of the suit. In the absence of such applications the court could not enlarge the timeline, since a consent order is a binding contract between the parties endorsed as a court order.
Whether the preliminary objection was properly sustained
Yes; the objection raised a pure point of law - want of jurisdiction - which required no ascertainment of facts
Applying Mukisa Biscuit, the objection on jurisdiction satisfied all three ingredients: a pure point of law, pleaded, with no facts to be ascertained. Where jurisdiction is raised it must be determined first, and a court without jurisdiction must down tools.
Whether Article 159(2)(d) and the overriding objective required relief from the default
No; neither principle overrides a binding, un-set-aside consent order
The court reviewed the non-technicality jurisprudence and the overriding objective authorities and held that these principles do not permit a party to wriggle out of obligations under a voluntarily executed consent endorsed as a court order. The overriding objective requires full compliance with rules and precedent and must not be invoked arbitrarily.
Whether the trial judge's exercise of discretion was wrongful
No; the discretionary decision was sound and the Court of Appeal would not interfere
Applying Mbogo v. Shah and related authority, the judge correctly identified the legal position, correctly held herself bound by Gateway Insurance, and correctly declined relief on the merits: the appellant was already out of time by mid-December 2014 and no reinstatement order existed, so extension of time was untenable in the absence of a suit on which it could be anchored.
Legal principles established
#- A consent order duly endorsed by the court is binding and cannot be varied or extended by the court, nor can a party be relieved from its consequences, unless it is set aside on grounds such as mistake, fraud or misrepresentation; a court has no jurisdiction to enlarge a timeline fixed by the parties' own consent.
- An appellate court will not interfere with the exercise of judicial discretion by a lower court unless satisfied that the judge misdirected himself, acted on wrong principles, took into account matters he should not have, or failed to take into account matters he should have, and as a result arrived at a wrong decision.
- A preliminary objection must raise a pure point of law argued on the assumption that all facts pleaded by the other side are correct; an objection to jurisdiction qualifies, and once want of jurisdiction is established the court must down tools.
- Article 159(2)(d) of the Constitution is not a panacea for all procedural ills and does not provide succor for a party in default of compliance with timelines in a voluntarily executed consent order which has not been set aside.
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal to the 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
- High Court of Kenya
- Not stated
- Jurisdiction invoked
- Appellate jurisdiction under the Appellate Jurisdiction Act (first appeal against exercise of judicial discretion by the High Court)
Relief refused
#Enlargement of time to provide security for costs as ordered in the consent of 2nd October 2014
The court lacked jurisdiction to enlarge a timeline fixed by consent where the suit stood dismissed under item 3 of the consent and no application to set aside the consent or reinstate the suit was before the court
Invocation of Article 159(2)(d) of the Constitution to cure the default
Article 159(2)(d) is not a panacea for all procedural ills and does not relieve a party from obligations under a consent voluntarily entered and not set aside
Costs
Appeal dismissed with costs to the 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.
an order of the court which is recorded out of or arising from a consent of the parties is a binding contract between the parties to the dispute and as such, is like any other order of the court leaving no room for the discretion of the court to set aside that order save where the complaining party shows to the satisfaction of the court that the consent was entered into by mistake, fraud or misrepresentation
We find nothing in the above principles/propositions to suggest that Article 159(2)(d) of the Constitution of Kenya, 2010 is a panacea for all procedural ills.
The upshot of the totality of the above assessment and reasoning is that we find no merit in the appeal. It is accordingly dismissed with costs to the respondents.
where the issue of jurisdiction is raised, it has to be determined first and once a court is of the opinion that there is want of jurisdiction in it to proceed with the matter, it has to down tools
Issues in the judgment
#The judgment text appears to contain typographical/OCR corruption, e.g. in paragraph 12, grounds of appeal are garbled
The paragraph 7 quotation of the ruling has an internal line-break/duplication artefact and the defence date is given as 22nd February 2016 although the plaint was filed in 2006, likely a typographical error for 2006
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Perera v Nation Media Group & 2 others (Civil Appeal 122 of 2016) [2021] KECA 135 (KLR)", Case Analysis (2021). Court of Appeal Civil Appeal arising from a plaint dated 16th January 2006 (appeal number not stated in the text). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/135/eng@2021-11-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.