Kenya Commercial Bank Ltd V Specialized Engineering Company Ltd EKLR
|Civil Case 1728 of 1979||16 Jan 1980|
Leslie Gerald Eyre Harris
High Court at Nairobi (Milimani Law Courts)
Kenya Commercial Bank Ltd v Specialized Engineering Company Ltd
Kenya Commercial Bank Ltd v Specialized Engineering Company Ltd eKLR
Kenya Commercial Bank Ltd v Specialised Engineering Company Ltd
High Court, at Nairobi
January 16, 1980
Civil Case No 1728 of 1979
Civil Practice and Procedure - compromise of suit - consent order - order drafted and signed by advocates on record - extent to which an advocate can bind a client - consent recorded by court - draft order filed - refusal by instructing client to approve order - application to have consent order reviewed, discharged set aside or varied - grounds for granting such an order - advocate consented to the order by mistake - mistake apparently bona fide - extent - circumstances when compromise can relate to a suit - meaning of the former Order XXIV rule 6 of Civil Procedure (Revised) Rules 1948.
Advocate - powers of an advocate - power to compromise the suit - power to bind the client - extent of - power to vary a consent order entered into by a duly instructed advocate.
The advocates for both parties reached an agreement, drafted a consent order and presented it to the court to be recorded as an order by consent. The plaintiff subsequently refused to approve the order and an application seeking to set aside or vary the consent order was made. The court according to the application was to consider the circumstances under which a consent order may be set aside or varied.
- A consent order entered into by counsel is binding on all parties to the proceedings and cannot be set aside or varied unless it is proved that it was obtained by fraud or collusion or by an agreement contrary to the policy of the court or where the consent was given without sufficient material facts or in misapprehension or ignorance of such facts in general for a reason which would enable the court to set aside an agreement.
- A duly instructed advocate has an implied general authority to compromise and settle the action and the client cannot avail himself of any limitation by him of the implied authority to his advocate unless such limitation was brought to the notice of the other side.
- An advocate has general authority to compromise on behalf of his client, as long as he is acting bona fide and not contrary to express negative direction. In the absence of proof of any express negative direction, the order shall be binding.
- The fact that a material fact within the knowledge of the client was not communicated to the advocate when he gave his consent to a court order is not sufficient ground for the client withdrawing his consent to the order before it is passed and entered even if the advocate concedes that he would not have given his consent had he known these facts.
- The making by the court of a consent order is not an exercise to be done otherwise than on the basis that the parties fully understand the meaning of the order either personally or through their advocates and when made, such an order is not lightly to be set aside or varied save by consent or on one or either of the recognised grounds.
At the appeal against this decision, the Court of Appeal, in an unprecedented move, “adopted” as its judgment the High Court decision of Harris J. Below is the Court of Appeal decision:
- Khushaldas & Son v Weinstein  EA 734 Referred
- Brook Bond Liebig (T) Ltd v Mallya  EA 266 Approved & Applied
- Welsh v Roe (1918), 87 LJ KB 520 Approved & Applied
- In Re Wedge (1908), 98 LT 436 Approved & Applied
- R Walton, Kerr on the Law and Practice as to Receivers, Sweet & Maxwell: London, 15th Edn (1979) pp 321 - 322
- HW Seton, Forms of Judgments and Orders in the High Court of Justice and Court of Appeal, Stevens & Sons: London, 7th Edn (1912) Vol I
- IH Jacob, et al, (Ed), The Supreme Court Practice, 1979, Sweet & Maxwell, Stevens & Sons Ltd: London, (1979) Vol II paras 2012 - 2013
Civil Procedure Rules (Cap 21 Sub Leg) Order XXIV rule 6
Mr P Le Pelley & Mr Nyamu for Plaintiff
Mr JJ Patel for Defendant