[2004] KEHC 1050 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL APPEAL NO. 82 OF 2004

ALI K. AHMED t/a

SKY CLUB RESTAURANT ……………………………………… APPELLANT

Versus

KABUDU HOLDINGS LTD. ……………………………………. RESPONDENT

R U L I N G

By a Notice of Motion dated the 6th October 2004 and expressed to be brought under Sections 3, 3A and 63(e) of the Civil Procedure Act and Order 41 Rule 4(2) and 6, Order 44 Rule 1 and Order 50 Rule 1 of the Civil Procedure Rules and all enabling provisions of law the Respondent in this appeal seeks, inter alia for orders which can be paraphrased as follows:-

1. To stay this court’s order of temporary injunction of 5th October 2004,

2. That the Appellant pays costs incurred by the Respondent in guarding the demised premises to prevent the Appellant from removing furniture therefrom.

3. That this court do set aside and/or vary paragraphs 5 and 8 of the consent order dated 6th August 2004.

4. In the alternative this court do find that paragraphs 5 and 8 are null and void as they were given without jurisdiction.

5. That this honourable court do preserve the status quo obtaining before the consent order of 6th August 2004 until the application is heard and determined.

The application is based on several grounds the main ones being on the point of jurisdiction, that the High Court has no jurisdiction to assess rent that being a preserve of the Business Premises Rent Tribunal and that this court by mistake allowed the parties to record a consent on rent assessment when that was not a matter before it. That there is an apparent error on the face of the record as parties cannot confer on the court jurisdiction which it does not have.

The other grounds are that this court cannot decide on matters which have been decided in HCCC No. 116 of 2004 and Civil Appeal No. 48 of 2004 and that to do that would be sitting on appeal on decisions of the court of concurrent jurisdiction, and that the Appellant has not filed an appeal to the Court of Appeal against the High court decisions in that case and that the period allowed has expired.

Mr. Kabundu, the duly appointed attorney of the Respondent citing several authorities argued that a court has no jurisdiction to decide on matters not covered in the pleadings and on which evidence has not been adduced. In this matter, he said, the issue of assessment of rent had not been raised either in this appeal or in the court below. In the circumstances, he contended, the court had no jurisdiction to allow the parties to record a consent on the issue.

On the temporary injunction, Mr. Kabundu argued that it goes against the consent order as it restrains the Respondent from proceeding with its other claims in this appeal and other cases one of which is an application coming up for hearing on the 3rd November 2004.

In response Mr. Malombo, for the Appellant/Respondent started by submitting that this application is incurably defective. The main prayer sought in the application is to set aside the consent order. Such a prayer, he said, cannot be sought under Order 44 of the Civil Procedure Rules.

On the merits of the application he argued that the same is unsustainable. The alleged mistake on the Respondent/Applicant’s part is an afterthought. The issue of rent is central in the pleadings in this matter right from the subordinate court and the Respondent/Applicant cannot now argue that it was mistaken. The parties having acted on the consent order by the Appellant paying to the Respondent Sh. 336,000/= and the Respondent returning the attached goods the Respondent is estopped from seeking to have it set aside. He denied the allegation that the Appellant is removing furniture from the premises.

One of the grounds upon which this application is brought is that there is an error apparent on the record in that the court by mistake allowed the parties to record a consent on a matter that was not before it. Although the term “review” is not used in the application that is what I understand the Applicant, being a layman, to be applying for. I understand the Respondents application to be seeking that this court do review the consent order of 6th August 2004 and set it aside. I do not therefore find that this application is fatally defective as submitted by Mr. Malombo.

The main prayer in the application is for the review and setting aside of the consent order of 6th August 2004. The law on when a consent order or judgment can be set aside is quite clear and our law reports are replete with decisions on that. One such decision is by law Ag. P. in Brooke Bond Liebig (T) Ltd. Vs Mallay [1975] EA 266 in which he stated at page 269 that:

“The circumstances in which a consent judgment may be interfered with were considered by this court in Hirani Vs Kassam (1952), 19 EACA 131 where the following passage from Seton on Judgments and Orders, 7 th Edn., Vol.I, P.124 was approved ‘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 consent was given without sufficient material facts, or in misapprehension or in ignorance of material facts, or in general for a reason which would enable the court to set aside an agreement’

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.”

This decision has been followed in several subsequent cases including the case of Flora N. Wasike Vs Destimo Wamboko (1982-88) 1 KAR 628 cited by Mr. Kabundu in this matter.

Applying the principles enunciated in that decision to this matter the issue I am required to decide on is whether there are grounds upon which I can review and set aside the consent order recorded in this appeal on 6th August 2004.

The Respondent/Applicant is not alleging that the consent order was entered into by fraud, collusion or misapprehension of the material facts. Rather, it is alleging that the court had no jurisdiction to allow the parties to enter into a consent on an issue that was not before it. And it is not seeking that the whole consent judgment be reviewed and set aside. It seeks to set aside paragraphs 5 and 8 of that order both of which relate to the assessment of rent. It is happy with the other paragraphs of the order like paragraphs 1 which enabled it to be paid Sh. 336,000/=.

The Appellants complaint in Mombasa CMCC No. 2711 of 2004 was that the levy of distress upon its properties by the Respondent was illegal because the rent of Sh. 112,000/= had been reduced to Sh. 40,000/= per month. Paragraph 7 of the plaint in that case reads as follows:-

“The plaintiff further states and shall aver and maintain that on or about 5th March 2004 the plaintiff served upon the Defendant a notice under section 4(3) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Chapter 301 Laws of Kenya requiring that the rent in the said premises be reduced from Sh. 112,000/= per month to Sh. 40,000/= and the Defendant having failed and/or ignored to file a reference to the Business Premises Tribunal as required under provisions of section 6 and 10 (sic) of the said Act, the rent reverted by operation of the law from Sh. 112,000 to Sh. 40,000/=.”

It cannot therefore be right to argue that the issue of rent was not before the court. If my recollection is right even in the other cases involving the same parties that have come before me gravitate around the issue of the quantum of rent. It is therefore abundantly clear to me that the issue of rent is central in this and other matters involving these parties. An agreement on that issue would therefore resolve all the matters. I must therefore reject the Respondent’s contention that the court had no jurisdiction to allow the parties to record a consent on that.

If I am wrong in this I am, nevertheless, of the opinion that even if a matter is not directly before the court if the parties on their own volition decide to include it in their consent order the court cannot stop them.

The parties voluntarily entered into the consent order pursuant to which the Respondent/Applicant was paid Sh. 336,000/= and both the parties have caused their respective valuers to assess the premises and have filed valuation reports for purposes of assessing the reasonable rent payable for the premises. It seems to me that the Respondent/Applicant has, since the filing of the valuation reports, had second thoughts and now wants to resile from the consent order. It has no valid ground for doing so.

The other prayers in the application are all pegged on the one of review I have already dealt with. Consequently I find no merit in the entire application and the same is hereby dismissed with costs.

DATED and delivered this 16th day of November 2004.

D.K. Maraga

Ag. JUDGE