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Court of AppealDismissedNot stated in the judgment (Memorandum of Appeal dated 17th June 2023)

Mwalambe & another v Freedom Limited (Civil Appeal E022 of 2023) [2025] KECA 252 (KLR)

Court of Appeal of Kenya
21 February 2025
AMA. K. MurgorKLDr. K. I. LaibutaGNG. W. Ngenye-Macharia
3,221 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that once you or your lawyer consent to a court judgment, you can only escape it by proving fraud, mistake, or lack of authority — and you must act quickly.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Mombasa against a ruling of Makori, J of the Environment and Land Court delivered on 31st May 2023, dismissing the appellants' application to review the earlier ruling of Odeny, J of 10th November 2022 which had refused to set aside a consent judgment entered on 21st January 2020 in a land sale dispute with Freedom Limited. The consent, executed by the parties' advocates, recorded the sale of eight acres to the respondent, acknowledged receipt of the purchase price, and provided for rectification of titles. The appellants contended that their advocate signed the consent without authority and that the application to set it aside was not unduly delayed. A three-judge bench (Murgor, Laibuta and Ngenye-Macharia, JJA) heard the appeal virtually; the respondent did not appear despite service. The Court observed that although the appeal was formally against Makori, J's review ruling, the appellants' real complaint was the refusal to set aside the consent, and proceeded on that basis. It applied the settled principle that a consent judgment may be set aside only on grounds that would justify setting aside a contract, such as fraud, mistake or misrepresentation, and that an advocate is presumed fully authorised unless proved otherwise. Finding no evidence of lack of authority, fraud or misrepresentation, and noting an unexplained delay of over two years (Covid-19 being no excuse as registries and virtual filing operated), the Court found no error in either ruling below, affirmed both decisions, dismissed the appeal, and made no order as to costs given the respondent's non-participation.

Questions the Court framed

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

  1. 1.Whether the appellants met the threshold for setting aside the consent judgment/order of 21st January 2020
  2. 2.Whether the application to set aside the consent order was filed with inordinate delay

Key legal issues

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01

Threshold for setting aside a consent judgment

Holding

The appellants did not demonstrate lack of authority, fraud or misrepresentation by their advocate; the presumption of the advocate's authority stood unrebutted.

Reasoning

Advocates are recognised agents of parties and are presumed to act within the full knowledge and authority of the client unless proved otherwise. The appellants produced no evidence that L. N Momanyi & Co. Advocates lacked instructions, took no disciplinary action, and gave only bare allegations. The court was therefore not persuaded that the appellants were unaware of the consent's terms, and the trial Judges did not err in upholding it.

p. 6
02

Inordinate delay in seeking to set aside the consent

Holding

The two-year-and-two-month delay between the filing of the consent (21st January 2020) and the application (21st March 2022) was unexplained; Covid-19 was no excuse as registries and virtual filing were operational.

Reasoning

The court noted the consent was filed on 21st January 2020 while the setting-aside application was dated 21st March 2022. Covid-19 did not paralyse the courts; registries operated and virtual filing was introduced within months. The court inferred a change of mind after adoption of the consent, and equity would not aid the indolent. The delay alone justified refusal to set aside.

p. 6

Legal principles established

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  • A consent judgment or order can only be set aside on the same grounds as would justify setting aside a contract, such as fraud, mistake or misrepresentation, and an advocate is presumed to be fully authorised by the client unless the contrary is proved.
  • A party alleging lack of authority in the advocate who signed a consent bears the burden of substantiating that allegation; mere assertion is insufficient, and unexplained delay of over two years will not be excused.

Court orders

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  1. 1.Appeal dismissed with no orders as to costs

The bench

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

AM
majority
KL
majority
GN
majority
On appeal from
Environment and Land Court at Malindi
Not stated
Jurisdiction invoked
First appeal under rule 31(1)(a) of the Court of Appeal Rules, 2022

Relief refused

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Setting aside of the consent judgment dated 18th January 2020 and remission for retrial

No compelling grounds; authority and fraud not substantiated; inordinate, unexplained delay

p. 6

Costs of the appeal and proceedings in the superior court

Appeal dismissed; respondent did not participate

p. 6

Costs

Appeal dismissed with no orders as to costs since the respondent did not participate in the appeal

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.

a consent judgment or order can only be set aside on the same grounds as would justify the setting aside a contract, for example, on grounds of fraud, mistake or misrepresentation
p. 5Threshold for setting aside consent judgments
The general assumption, unless otherwise proved, is that, an advocate being the authorised agent of a party, is deemed to be fully authorised by his/her client and that whatever he/she transacts is assumed to be within the full knowledge and authority of the client.
p. 6Presumption of advocate's authority
In the upshot, we arrive at the inescapable conclusion that this appeal is devoid of merit and hereby dismiss it with no orders as to costs since the respondent did not participate in the appeal.
p. 6Final orders and disposition

Issues in the judgment

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minor

Internal date discrepancy in the consent: described in the judgment as dated 18th January 2020 and filed on 21st January 2020, but paragraph 11 refers to a consent judgement filed in court on 21st January 2022

minor

The suit property is described inconsistently - the offer is said to relate to Kilifi/Mgumopasta/Mazera/1263 while the consent refers to acreage curved out of Kilifi/Mgumopasta/Mazeras 953 and parcel 1263

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, "Mwalambe & another v Freedom Limited (Civil Appeal E022 of 2023) [2025] KECA 252 (KLR)", Case Analysis (2025). Not stated in the judgment (Memorandum of Appeal dated 17th June 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/252/eng@2025-02-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.