[2017] KEHC 1101 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL APPEAL NO. 169 OF 2016

AHMED SAID AMADI ……………….APPELLANT/APPLICANT

VERSUS

JACOB FUNDI MUGO……………...……..............RESPONDENT

RULING

1. The applicant, Ahmed Said Amadi has moved this court under the provisions of Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, Order 42 Rule 6, Order 50 Rule 5 and Order 51 Rule 1 of the Civil Procedure Rules 2010, seeking the following orders:-

(i) Spent;

(ii) Spent;

(iii) That this Honourable court be pleased to reinstate and/or extend the orders issued by this Honourable Court on 13th January, 2017 and consequently extend the period within which parties can comply with the said orders by way of depositing the decretal sum plus costs in a joint interest account in the joint names of the applicant’s and Respondent's Counsel; and

(iv) That the costs of the application be provided (sic).

2. The application is supported by the affidavit of Clive M. Mulama sworn on 8th March, 2017. The respondent’s Counsel filed a replying affidavit on 27th March, 2017 to oppose the application and grounds of opposition on the said date. The applicant filed a further affidavit on 5th April, 2017.

3. The applicant’s Counsel’s written submissions were filed on 13th April, 2017 and those for the respondent's Counsel were filed on 4th May, 2017. Both Counsel highlighted the said submissions. In doing so, Mr. Mulama, Learned Counsel for the applicant urged this court to exercise its discretion by extending the orders issued on 13th January, 2017. He stated that parties had failed to deposit the decretal sum plus costs in a joint bank interest account due to challenges they faced in procuring bank account opening forms. He explained that following the change of the law on the interest chargeable on interest earning accounts, banks came up with new rules.

4. He submitted that he managed to procure the said forms from Cooperative Bank and all that was left was to deposit the decretal sum and costs in a bank account in the said bank. He further stated that the Managing Partner in their law firm filled the forms but the clerks in their firm failed to deliver the forms to the firm of Gachiri Karikuki & Co Advocates to execute the documents. He stated that they sought indulgence from the said Advocates to execute the documents after the 45 days had elapsed. He contended that the delay in obtaining the forms and error by their law firm in forwarding the forms to the respondent’s Counsel were not deliberate and are excusable. Mr. Mulama prayed for the orders of 13th January, 2017 to be reinstated for a duration to be determined by the court. He submitted that the court has inherent discretion under Sections 1A, 1B and 3A of the Civil Procedure Act to issue the orders sought. He also relied on the provisions of Section 95 of the said Act. He also cited the provisions of Order 50 Rule 5 of the Civil Procedure Rules which give the court discretion to enlarge time as the justice of the case may require. He referred to the case of Eldoret Grains Ltd. Vs National Cereals and Produce Board [2014] eKLR where Ngenye J., allowed a similar application and extended the time when monies could be deposited in a joint bank account after finding that delay in opening the account was not deliberate and neither was it intended to delay or defeat the administration of justice.

5. In addressing the written submissions by the respondent's Counsel that the consent order of 13th January, 2017 can only be varied on grounds of misrepresentation, fraud or mistake, Mr. Mulama submitted that the application herein is not trying to set aside or vary the consent entered into, but seeks reinstatement and extension of time. He prayed for the application to be allowed.

6. The respondent through his Learned Counsel, Mr. Kalimbo opposed the application. He stated that the parties herein entered into a consent on 10th January, 2017 on condition that the applicant was to deposit the decretal sum and costs within 45 days from the said date. The consent was to elapse on 24th February, 2017. Counsel stated that they settled for Barclays Bank of Kenya and the information about the search for other banks was not relayed to Mr. Gachiri Kariuki Advocate. He submitted that parties willingly entered into the consent and there was therefore no misapprehension of facts that can lead this court to vary the consent. He relied on the case of West Kenya Sugar Co. Ltd. vs Harun Nambale Inzera [2015] eKLR,where this court cited the Court of Appeal decision of M&E Consulting Engineers Ltd. vs Lake Basin Development Authority & Another [2015] eKLR, and argued that a consent order can only be varied if it is proved that it was obtained by fraud or collusion. He contended that although this court has the discretion to enlarge time under the provisions of Section 95 of the Civil Procedure Act, that was not applicable in this case as a consent order was recorded.

7. Counsel for the respondent also relied on the case of Gateway Insurance Company Limited vs Aries Auto Sprays [2011] eKLR where the Court of Appeal found that the High Court had absolutely no jurisdiction to alter the terms of a contract between the parties and rejected the appeal before it.

8. It was further submitted that a consent becomes a contract upon adoption and therefore it cannot be varied or cured under the provisions of Article 159(2)(d) of the Constitution of Kenya. He prayed for the application to be dismissed as the court has no jurisdiction to vary the consent order. He relied on the case of Bernard Maina Kamau vs Sunripe Limited[1976] Limited [2014] eKLR, where the court held that failure to comply with court orders or directions is not a procedural technicality to be cured by invoking the provisions of Article 159(2)(d) of the Constitution of Kenya.

ANALYSIS AND DETERMINATION

The issue for determination is if this court can enlarge timelines agreed upon by consent of the parties.

9. On 10th January, 2017 the the parties hereto appeared before this court and entered into a consent that was put down in writing by the court. The said consent was adopted as orders of the court. The said consent was arrived at following an application filed by Counsel for the applicant on 15th December, 2016 seeking orders for stay of execution of the Judgment and decree entered in Mombasa RMCC No. 950 of 2013. The effect of the consent was to give the applicant 45 days within which to deposit the decretal sum plus costs in a bank interest earning account in the joint names of the applicant’s and respondent’s Advocates.

10. It is not contested that the Counsel on record settled for Barclays Bank of Kenya, Nkrumah Road, Mombasa as the ideal bank to open the said account. This can be established through the annexures marked as CMM2 and CMM3 attached to the affidavit in support of the application. The annexure marked as CMM4 attached to the said affidavit shows that on 23rd January, 2017 the applicant’s Counsel wrote to Mr. Gachiri Kariuki and Company Advocates, updating them of the commencement of the process of procurement of the forms from Barclays Bank of Kenya Ltd., and that the said forms would be executed by Mr. Cecil Miller and thereafter be delivered to the respondent’s Counsel.

11. The annexure marked as CMM6 attached to the supporting affidavit indicates that on 23rd February, 2017 the applicant’s Counsel wrote to the respondent’s Counsel informing them of the difficulties they had encountered in procuring of the bank account opening forms from Barclays Bank and Standard Chartered Bank, and as such, they had approached Cooperative Bank and obtained account application forms for opening the joint interest earning account. The said letter forwarded the said forms to the respondent’s Counsel for execution on their part.

12. Counsel for the respondent on 27th February, 2017 responded to the said letter through the annexure marked CCM7 attached to the supporting affidavit, indicating that the 45 days that had been agreed upon by consent elapsed on 24th February, 2017. They declined to execute the bank account opening forms. Through a letter dated 7th March, 2017 attached to the said affidavit, Counsel for the applicant wrote to the respondent's Counsel seeking extension of the period for depositing the decretal amount by seven days.

13. It is discernible from the affidavits and the annexures thereto as well as the submissions of Counsel on record that there was no communication from Counsel for the applicant to the respondent’s counsel to bring him to speed on the difficulties that he states their law firm encountered in trying to obtain the said forms from Barclays Bank. There was also no proposal made for the two law firms to settle for Cooperative Bank as an alternative to Barclays Bank of Kenya, which had been their bank of choice. For a whole month, from 24th January, 2017 to 23rd February, 2017 there was silence on the part of the applicant’s Counsel. Had Counsel for the applicant engaged his counterpart early enough when their law firm encountered a hitch, they would most likely have found a quicker solution to the predicament.

14. Mr. Mulama’s argument that they are not seeking a variation of the consent order cannot hold sway. If this court was to grant an extension of timelines within which the opening of a joint interest earning bank account can be done, it will be altering the timeline of 45 days that was agreed upon by the parties herein, and thereby vary the consent. The case of Eldoret Grains Limited vs National Cereals and Produce Board [2014] eKLR was delivered by a court of concurrent jurisdiction and is therefore of persuasive value.

15. This court still holds the same view as it held in the case of West Sugar Co. Ltd. vs Harun Nambale Inzera (supra) that this court lacks jurisdiction to enlarge time unless by the mutual consent of the parties, in a case where a consent was entered into. In Kenya Commercial Bank Ltd. vs Specialized Engineering Co. Ltd. [1982] KLR 485, Harris J. held interalia, that:-

“1. 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.

2. 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.”

16. This court has said enough to show that a consent once adopted by the court mutates into a contract and is binding on the parties to it. In this case the applicant’s Counsel operated as a Lone Ranger in the search of an alternative bank to open a joint interest earning account and ran afoul of the consent order. Counsel for the respondent had extended an olive branch to the applicant's Counsel by entering into a consent. They however dragged their feet and effluxion of time caught up with them.

17. In the foregoing circumstances, the application dated 8th March, 2017 is without merit and is hereby dismissed. Costs are awarded to the respondent.

DELIVERED, DATEDand SIGNED at MOMBASA on this 10th day of November, 2017.

NJOKI MWANGI

JUDGE

In the presence of:-

Mr. Mulama for the appellant/applicant

Mr. Musili holding brief for Mr. Gachiri Kariuki for the respondent

Oliver Musundi - Court Assistant