IN THE COURT OF APPEAL

AT KISUMU

(Coram: Hancox JA, Nyarangi & Platt Ag JJA)

CIVIL APPEAL No. 81 OF 1984

BETWEEN

FLORA N. WASIKE .................................................APPELLANT

AND

DESTIMO WAMBOKO..........................................RESPONDENT

JUDGMENT

(Appeal from the High Court at Kakamega, Gicheru J)

January 25, 1985 Hancox JA delivered the following Judgment.

The point for our determination is whether the consent judgment recorded by Gicheru J on the 23 May this year, whereby the respondent agreed to sell plot 533 Kibisi Settlement Scheme of which he was the registered allottee, to the appellant for Shs 150,000/= and in default of payment of which sum by the 23 August 1984, the appellant agreed to yield up vacant possession, can be set aside on an appeal to this Court. The starting point is that section 67 (2) of the Civil Procedure Act (Cap 21) states that no appeal shall lie from a decree passed with the consent of the parties.

The appellant tendered a written submission to this court and informed us that she had not consented to the judgment, and, if her advocate at the time, Mr H S Dhanjal did so, then it was without her knowledge or authority. Moreover, the case had not been presented to the High Court in the way she and her husband, wanted. She had met her lawyer outside the court, and when they went in, she said, the consent judgment was already being read in English and translated by the court interpreter.

Additionally, in her memorandum of appeal the appellant said in effect that pressure had been brought on the parties to consent to terms, and that her husband (who has throughout been in the background and who is not directly a party to his case) was placed under police supervision during the proceedings. Further points as to the lack of Land Control Board consent and that her family had been on the land for over 14 years, that is to say well over the prescriptive period, were advanced by the appellant.

Mr Kapten, on behalf of the respondent to this appeal, said that the settlement was arrived at in the presence of both the advocates and their clients and submitted that the consent judgment regularly entered. It is worth noting here that the original agreement for sale of this land relied on by the appellant and pleaded in her defence stated the purchase price as being only Shs 2,200/=, which is a far cry from the present stated price of Shs 150,000/=.

It is now settled law that a consent judgment or order has contractual effect and can only be set side on grounds which would justify setting a contract aside, or if certain conditions remain to be fulfilled, which are not carried out: see the decision of this court in J M Mwakio v Kenya Commercial Bank Ltd Civil Appeals 28 of 1982 and 69 of 1983. In Purcell v F C Trigell Ltd [1970] 2 All ER 671, Winn LJ said at 676;

“It seems to me that, if a consent order is to be set aside, it can really only be set aside on grounds which would justify the setting aside of a contract entered into with knowledge of the material matters by legally competent persons, and I see no suggestion here that any matter that occurred would justify the setting aside or rectification of this order looked at as a contract.”

Both Lord Denning MR and Buckley LJ appeared to agree with this statement, moreover, that there was very little distinction between interlocutory orders (which was the kind of order there being considered) and final orders in this respect. Lord Denning thought (at 675) that a consent order of a judge would, subject to the Rules, be appealable with leave, and there is express provision for this in S 31 (1) (h) of The Supreme Court of Judicature (Consolidation) Act 1925. There is no similar provision in Kenya. This decision was followed in Chanel Ltd v F W Woolworth & Co Ltd [1981] 1 All ER 745, per Buckley LJ at 751, and in Siebe Gorman & Co v Pneupac [1982] 1 WLR 185, per Lord Denning MR at 189 and Eveleigh LJ at 191.

It seems that the position is exactly the same in East Africa. It was set out by Windham J, as he then was, and approved by the Court of Appeal for East Africa, in Hirani v Kassam (1952) 19 EACA 131, at 134, as follows:

“The mode of paying the debt, then, is part of the consent judgment. That being so, the court cannot interfere with it except in such circumstances as would afford good ground for varying or rescinding a contact between the parties. No such ground is alleged here. The position is clearly set out in Setton on Judgments and Orders (7th edn), vol 1, P 124, as follows:

“Prima facie, any order made in the presence and with the consent of counsel is binding on all parties to the proceedings or action, and on those claiming under them ... and cannot be varied or discharged unless obtained by fraud or collusion, or by an agreement contrary to the policy of the court ...; or if the consent was given without sufficient material facts, or in general for a reason which would enable the court to set aside an agreement.”

This passage was followed by the same court in Brooke Bond Liebig Ltd v Mallya [1975] EA 266 at 269 in which Law Ag P said:

“A court cannot interfere with a consent judgment except in such circumstances as would afford good ground for varying or rescinding a contract between the parties.”

For may part, I am not wholly convinced that section 67 (2) is an absolute bar to an appeal in a case such as this one, though for the reasons I shall shortly state I do not think there exist grounds for deciding the issue as to whether the appellant did consent to the judgment which was entered by Gicheru J in the instant case on this appeal, bearing in mind the practical difficulties of so doing.

It will be observed that while Mr Kapten says in this Court that both parties and their advocates agreed to the consent judgment after a discussion, at which even the village elder was present, and that the appellant was prepared to pay the such larger sum expressed in it so that she and her family might remain on the land, the appellant strenuously contends that she did not consent. It is thus disputed that there was a decree passed by consent. Though the burden on the appellant to displace the judgment would be a formidable one and possibly difficult to discharge on an appeal, particularly in view of the fact that it states on the face of it is a judgment by consent, I do not regard the appeal as necessarily incompetent in law.

The question is, then, how is the party objecting to it to go about setting aside the consent judgment or order, assuming he cannot appeal it? There are passages in the Annual Practice which indicate that a separate action has to be brought to do so: see the 1979 edition, vol 2 at para 2010. In the Brooke Bond Case, Law Ag P, with whom the rest of the court agreed, said that the consent judgment could be challenged in the suit itself, and, as I understand him, by an application for review under the Order relating to that procedure. But he did not rule out the bringing of a separate suit for this purpose, and the burden in either case would be on the party seeking to set the judgment aside. In my view, either method is possible, and which is adopted must depend very much on the circumstances of the case, as to what witnesses have to be called, the nature of the grounds relied on for setting aside, and so on.

In the instant case, while the judge did not in terms record the parties ‘or their advocates’ consent to the consent judgment he entered, nevertheless the original record shows that both parties were represented by advocates and that the consent judgment was recorded in their presence. As was stated in the reverse situation in Chandless-Chandless v Nicholson [1941] 2 All ER 315, at 317 by Lord Greene MR, the universal practice is to record that a judgment or order is by consent, if that be the case, and it is difficult to believe unless demonstrably shown otherwise that the court would so head the judgment if it were not the case, at least so far as the judge was aware. Furthermore Waugh v H B Clifford & Sons [1982] Ch 374, is persuasive authority that a solicitor or counsel would ordinarily have ostensible authority to compromise suit so far as the opponent is concerned, and Mr Dhanjal would seem to have had such authority in this case. I can detect no valid reasons on the record for saying that there exist grounds such as I have referred to which would justify the setting aside of this judgment as a contract, though this does not preclude the appellant from proceedings by one of the other methods which I have indicated as being open to her.

For these reasons I would dismiss the appeal. As Nyarangi Ag JA is of the same opinion the appeal is ordered to be dismissed, with costs.

Nyarangi Ag JA. The facts giving rise to this appeal are sufficiently set out in the judgments of Hancox JA and Platt Ag JA both of which I have read in draft.

Section 67 (2) of the Civil Procedure Act (the Act) provides:

“No appeal shall lie from a decree passed by the court with the consent of parties.”

For the purpose of appeal ‘decree’ includes judgment.

The decree envisaged by sub-section 2 of section 67 of the Act is doubtless a valid decree obtained without circumstances of fraud or mistake or misrepresentation. There is ample authority that a decree passed by a court with the consent of the parties may in appropriate circumstances be challenged on grounds that it was obtained by fraud or mistake or misrepresentation or on any other reason which would persuade a court to vary or set aside the consent decree: See for example Siebe Gorman & Co Ltd v Pneupac Ltd [1982] 1 WLR 185, Brooke Bond Liebig Ltd v Mallya [1975] EA 266 and J M Mwakio v Kenya Commercial Bank Ltd Civ Apps Nos 28 of 1982 and 69 of 1983 per Hancox JA on p 7. An aggrieved party may apply for review under Ord 44, r 1 of the Civil Procedure Rules. Nevertheless a review is not an alternative to an appeal notwithstanding the wide scope of the Order. I respectively agree with Hancox JA that either method is possible, and that, whether an appeal is filed or a review applied for, would depend on the manner by which the aggrieved party wishes to present his case and on the nature of the order sought.

I entertain considerable doubt if sub-section 2 of section 67 of the Act can reasonably be interpreted to act as an absolute bar to a party seeking to prove that a decree is invalid ab initio and should be rescinded or that there exist circumstances to warrant varying the decree. I am at one with Hancox JA who is not wholly convinced in that respect. It must be obvious that it would be no mean task for a party to a decree by consent to prove that the decree is invalid even on the grounds to which I have referred.

It is abundantly clear to me that the appellant was a ready and willing party to the material judgment by consent and that the terms and consequences of the judgment were explained to her. The subject matter is, and the circumstances were, such that the appellant, who was accompanied by her husband, must have fully appreciated the a implications of the judgments. It has I think downed on the appellant that, no matter how much time she is allowed, she will not be able to raise the agreed purchase price.

Her appeal is an attempt to resile from a valid consent judgment on wrong grounds. That however, is not to say, for reasons already mentioned, that the appeal is incompetent. I would dismiss the appeal with costs.

Platt Ag JA. The respondent Destimo Wamboko sued the appellant Flora N Wasike in the Resident Magistrate’s Court at Kitale, seeking possession of plot no 533 in the Kibisi Settlement Scheme, Bungoma District. The appellant Flora is in possession of that plot and has been since 1971, and she asked for specific performance of an agreement of sale of the plot which she entered into with the respondent on 21 January 1971. Flora alleged that she had paid the price in or about June 1971, and further that the Tongaren Land Control Board gave consent for the purchase on 9 June 1972. Since then the respondent had been asked several times to execute a valid transfer in favour of the appellant, but the respondent had neglected to do so. In a sort of counterclaim (not so named unfortunately) the appellant prayed for orders that the transfer be signed by the respondent or in the default the court would authorize its signature.

These proceedings ended in a consent judgment whereby a fresh agreement to sell plot No 533 was to be entered into an agreed price of Shs 150,000. The respondent agreed to sign the transfer, or in default he would suffer the registrar of the High Court to sign it, and all other relevant documents. On the other hand, if the appellant failed to pay the price, then she would vacate the plot, or suffer eviction.

The appellant now seeks on this appeal to resile from this consent judgment for various reasons. On the other hand, Mr Kapten for the respondent, seeks by a motion to strike out the appeal. Mr Kapten’s affidavit counters all the allegations of irregularity and lack of consent raised by the respondent. It is not necessary nor desirable for us to enter into an adjudication of the rights or wrongs of the consent judgment. It is clear from section 67(2) of the Civil Procedure Act that no appeal can lie from a consent judgment. The proper course for the appellant to take is to set aside the consent judgment either by way of Review by the High Court, or by some process in that court, according to the advice she receives.

At present the application to strike out the appeal must succeed, as this court has no jurisdiction to entertain the appeal. I would therefore strike out the appeal as incompetent, with costs to the applicant in the motion, and costs to the respondent in the appeal.

Dated and delivered at kisumu this 25th January , 1985

A.R.W  HANCOX

...........................

JUDGE OF APPEAL

J.O NYARANGI

...........................

AG. JUDGE OF APPEAL

H.G PLATT

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AG. JUDGE OF APPEAL