[2021] KEHC 12649 (KLR)
The court found that the delay in obtaining the typed proceedings was attributable to the court and not the respondent, as evidenced by letters requesting the proceedings. The respondent had complied with all conditions for stay of execution, including depositing the decretal sum. The court reaffirmed that a consent...
Source-derived case information.
- Citation
- [2021] KEHC 12649 (KLR)
- Parties
- Applicant: Alico Kenya Limited aka CFC Insurance Co. (K) Limited; Respondent: Salim Mohamed Makasha
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 656 of 2016
- Procedural Posture
- Civil Appeal / Ruling on Application to Set Aside Consent Order
- Outcome
- application dismissed
- Legal Topics
- Setting Aside Consent Orders, Stay of Execution, Delay in Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alico Kenya Limited aka CFC Insurance Co. (K) Limited
Applicant
Salim Mohamed Makasha
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Set Aside Consent Order
Legal Issues
- 1 Whether the consent order entered on 27th April, 2017 should be set aside.
- 2 Whether the delay in filing the Record of Appeal is attributable to the respondent or the court.
- 3 Whether the respondent will suffer prejudice if the consent order is set aside.
Ratio Decidendi
The court found that the delay in obtaining the typed proceedings was attributable to the court and not the respondent, as evidenced by letters requesting the proceedings. The respondent had complied with all conditions for stay of execution, including depositing the decretal sum. The court reaffirmed that a consent order has contractual effect and can only be set aside on grounds that would justify setting aside a contract. Since no such grounds were established and the delay was not the respondent's fault, there was no merit in the application to set aside the consent order. The application was dismissed with costs in the cause.
Court Disposition
application dismissed
Orders
- The application dated 6th July, 2020 is dismissed with costs in the cause.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
HIGH COURT CIVIL APPEAL CASE NO. 656 OF 2016
ALICO KENYA LIMITED aka CFC INSURANCE CO. (K) LIMITED...........APPLICANT
VERSUS
SALIM MOHAMED MAKASHA.......................................................................RESPONDENT
RULING
1. The application dated 6th July, 2020 seeks orders thatthis honourable court be pleased to set aside the consent order entered on 27th April, 2017 and the consequential orders thereof.
2. It is stated in the grounds and the affidavit in support that judgment was delivered by the Lower Court on 30th September, 2016. That subsequently the Respondent filed the Appeal herein. That the parties herein on 12th May, 2017 entered into a consent to stay the execution of the judgment and the Decree pending the hearing and determination of the Appeal. That to date the Record of Appeal has not been filed as the typed Lower Court proceedings have not been supplied. It is contended that the delay is unreasonable and prejudicial to the Respondent who is elderly and cannot enjoy the fruits of the judgment.
3. The application is opposed. It is stated in the replying affidavit that no reasons have been given to warrant the setting aside of the consent herein. That the Respondent complied with the conditions for stay of execution pending the hearing and determination of the Appeal and deposited the decretal sum of Ksh.2,882,987. 26 in a joint account of the advocates for the parties. That the Respondent has taken steps to procure the typed proceedings but the Lower Court is yet to supply the same. It is further stated that if the application is allowed the Respondent will suffer prejudice and the Appeal rendered an academic exercise.
4. The Applicant filed a further affidavit in response. It is stated that the Respondent is not diligent enough and has taken no steps to have the Executive Officer summoned to explain the delay. That indeed it is the Applicant who has stepped up the obtaining of the typed proceedings.
5. I have considered the application, the response to the same and the written submissions filed by the respective counsel for the parties.
6. It is evident from the depositions of both parties herein that the blame for the failure to avail the typed proceedings lies squarely with the court. The delay cannot therefore be attributed to the Respondent. The Respondent has exhibited several letters herein requesting for the typed proceedings.
7. As stated by the Court of Appeal in the case of Flora Wasike v Destimo Wamboko [1988] IKAR 625:
“It is now settled law that a consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside, or if certain conditions remain to be fulfilled, which are not carried out.”
8. With the foregoing, I find no merits in the application and dismiss the same with costs in cause.
Date, signed and delivered at Nairobi this 25th day of Feb.,2021
B. THURANIRAJADEN
JUDGE