Musa v Mustafa & another (Civil Appeal E178 of 2023) [2025] KECA 677 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that you cannot settle a case behind the backs of parties who would lose out - such agreements will be thrown out.
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 setting aside the consent orders issued on 26th February, 2020, and reinstating both appeals against the 1st, 2nd and 3rd respondents therein respectively, to enable the appeals to be heard on merit
- 2.Whether the learned judge erred in consolidating the said appeals and transferring them to the High Court of Kenya at Vihiga for final disposal, on the ground that the decision challenged was that of a subordinate court sitting at Vihiga
- 3.Whether the learned judge erred in dismissing the appellant's application for provision for security for costs against the respondents
Key legal issues
#Validity of consent orders entered without all affected parties
The learned judge did not err in setting aside the consent orders and reinstating the appeals, because the respondents, who held decrees in their favour, were neither involved in nor present when the consents compromising the entire appeal were entered
The respondents were primary parties in the kadhi's succession cause and had prevailed there, earning awards over the suit property. Any appeal against the kadhi's orders necessarily affected them. A consent whose effect is to dispose of an entire suit adversely to other parties can only be valid if those parties are involved; that principle applies regardless of whether their joinder was itself disputed, since that was an issue for determination on appeal.
Consolidation and transfer of appeals between High Court stations
The consolidation of the two appeals and their transfer to the Vihiga High Court were proper, as the two appeals raised common questions arising from the same kadhi proceedings and the Vihiga High Court has supervisory jurisdiction over the Vihiga kadhi's court
Consolidation is guided by Order 11 Rule 3(1) of the Civil Procedure Rules and case law; the key considerations are common questions of law or fact and the interests of justice and procedural efficiency. Both appeals arose from the same kadhi's succession cause and judgment. On transfer, the single High Court enjoys unlimited geographical jurisdiction notwithstanding section 18 of the Civil Procedure Act, so one station may direct another to hear a matter where the ends of justice are better served.
Security for costs
The dismissal of the appellant's application for security for costs was proper because the appellant did not establish the statutory grounds for such an order
An order for security for costs requires demonstration that the party against whom it is sought is not resident in Kenya, is of no fixed abode, is a flight risk, cannot or will not pay costs, or that its case is vexatious or frivolous. The appellant adduced nothing sufficient on any of these grounds, so the judge's discretionary dismissal disclosed no error warranting appellate interference.
Prematurity of jurisdictional and substantive objections on an interlocutory application
The judge correctly declined to determine questions of jurisdiction, res judicata, sub judice and bias at the interlocutory stage, deferring them to the hearing of the substantive appeals
The ruling under challenge was confined to stay of consent orders, consolidation and security for costs. Questions of the kadhi's jurisdiction and whether his orders were res judicata or sub judice are substantive issues that must be canvassed at the hearing of the appeals against the kadhi's ruling and orders, and could not properly be resolved on the interlocutory applications before the judge.
Legal principles established
#- A consent order compromising an entire suit or appeal is only valid if it involves all parties whose interests would be adversely affected by it
- Non-involvement of essential parties is, by itself, sufficient ground to set aside a consent order
- There is only one High Court in Kenya with unlimited geographical jurisdiction, and it may transfer a suit or appeal between its different stations in the interests of justice
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal awarded to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kakamega
- Kakamega High Court Civil Appeal No. 69 of 2019 and Kakamega High Court Civil Appeal No. 80 of 2019
- Jurisdiction invoked
- First appellate jurisdiction under the Court of Appeal Act over appeals from the High Court exercising appellate supervisory jurisdiction over Kadhi's Courts
Relief refused
#Setting aside of the High Court's orders staying the consent orders of 26th February 2020 and consolidating the appeals
The consent orders were properly set aside because essential parties were not involved; the judge correctly exercised his discretion
Security for costs against the 4th and 5th respondents
The appellant failed to demonstrate the respondents were not residents of Kenya, persons of no fixed abode, flight risks, or that their application was vexatious or frivolous
Costs
The appeal was 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.
A consent order can only be valid if it involves all the parties to a suit if its efiect would be to dispose the entire suit in a way that is adverse to other parties to the suit.
In the present case, it is enough ground to set aside the consent orders that essential parties to the appeal were not involved in drafting the consent order yet its purport was to compromise the entire appeal.
notwithstanding section 18 of the Civil Procedure Act, there is only one High Court in Kenya which enjoys unlimited geographical limitations but has difierent administrative units and sits in difierent places.
The main question is not simply whether the parties to the appeal or suit are exactly the same. The key principles include whether there are common questions of law or fact, that is, whether the appeals raise similar or substantially the same legal or factual issues.
Accordingly, we are satisfied that this appeal lacks merit. It is hereby dismissed with costs to the respondents.
Issues in the judgment
#The judgment does not state the Court of Appeal case number of the present appeal anywhere in the record.
The two Kakamega High Court appeals are described as involving slightly different party configurations, and the consent order in Civil Appeal No. 80 of 2019 refers to allowing the appeal against 'the respondent' while naming the 1st, 2nd and 3rd respondents, creating some internal ambiguity as to whom each consent bound.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Moi Teaching and Referral Hospital & 3 others v Gikenyi B & 152 others (Civil Appeal E107 & E116 of 2024 (Consolidated)) [2025] KECA 937 (KLR)[2025] KECA 937 (KLR)23 May 2025applied
Cite this brief
#Cite this brief
Caselaw, "Musa v Mustafa & another (Civil Appeal E178 of 2023) [2025] KECA 677 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/677/eng@2025-04-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.