Grace Mumo Mbalu & 2 others v Stephen Mutie [2018] KEELC 8 (KLR)
The bottom line
#A Kenyan court varied a consent order because blocking a defendant's counter-claim would deny justice, despite no proof of fraud.
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 consent recorded by the parties on 8th March, 2018 should be reviewed and/or varied
- 2.Whether the Defendant/Applicant's notice of motion dated 12th February, 2018 should proceed to hearing inter partes on prayer 4, for reinstatement of his counter-claim
Key legal issues
#Whether the consent of 8th March, 2018 could be varied
Yes - although the Applicant did not establish fraud, collusion or agreement contrary to public policy, the court found circumstances warranting variation of the consent.
The court restated the law from the Board of Trustees NSSF v Michael Mwato that consent orders are only impeached on grounds such as fraud, collusion or agreement contrary to public policy. It found the Applicant had not shown these grounds, but held that denying the Applicant the chance to ventilate his counter-claim would amount to a denial of justice, and that the Respondents' travel expenses were not a bar. The court therefore found circumstances warranting variation.
Whether the Respondents' claimed expenses of returning from the United States to testify should defeat the application
No - the expenses to be incurred by the Respondents should not be a bar to the Applicant's desire to prosecute his counterclaim.
The Respondents opposed solely on the basis that they live in Kansas City, Missouri, and would incur significant costs (Kshs. 300,000 deponed; a ticket of Kshs. 161,327 exhibited) and inconvenience in travelling to Kenya to testify. The court held these expenses should not bar the Applicant from prosecuting his counterclaim.
Legal principles established
#- A consent judgment or order will only be set aside on grounds that would justify varying or rescinding a contract, such as fraud, collusion or an agreement contrary to the policy of the court
- Notwithstanding the strict grounds for setting aside consent orders, denying a party the chance to ventilate a counter-claim amounts to a denial of justice
Court orders
#- 1.The consent entered into by the parties in court on 8th March, 2018 is varied/reviewed (prayer 1 granted)
- 2.The notice of motion dated 12th February, 2018 shall proceed to hearing inter partes in respect of prayer 4, namely reinstatement of the Defendant/Applicant's counter-claim (prayer 2 granted)
- 3.The Defendant/Applicant shall bear the costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 3, 3A and 80 of the Civil Procedure Act (Cap 21) and Rules 44 and 45 of the Civil Procedure Rules, 2010
Relief refused
#Costs of the application against the Plaintiffs/Respondents (prayer 3)
The court ordered that the Applicant, not the Respondents, bear the costs of the application
Costs
The Applicant will bear the costs of the application.
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 court of law will not interfere with a consent judgment except in circumstances such as would provide a good ground for varying or rescinding a contract between parties. To impeach a consent order or a consent judgment, it must be shown that it was obtained by fraud, or collusion or by an agreement contrary to the policy of court
In my view, to deny the Defendant/Applicant the chance to ventilate his counter claim would amount to a denial of justice notwithstanding the grounds upon which consent can be set aside.
In the circumstances my finding is that the application has merits. I will grant it in terms of prayers 1 and 2. The Applicant will bear the costs of the application.
Issues in the judgment
#The affidavit deponent Angela Kanini Mbalu is described as 'the second Plaintiff/Respondent' in one passage but as 'the second Defendant/Respondent' in another, an internal inconsistency in party designation.
The heading describes the document as a ruling on a notice of motion, and the case title/number of the underlying suit are not stated in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Grace Mumo Mbalu & 2 others v Stephen Mutie [2018] KEELC 8 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/8/eng@2018-12-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.