[2005] KEHC 2461 (KLR)
The court held that the draft decree filed by the Plaintiff did not fully accord with the consent judgment previously entered. The proper procedure requires that the decree must strictly agree with the judgment, and if there is disagreement, the process outlined in Order XX Rule 7 must be followed. The Plaintiff is...
Source-derived case information.
- Citation
- [2005] KEHC 2461 (KLR)
- Parties
- Plaintiff: Arthur K. Igeria t/a Igeria & Co. Advocates; Defendant: Ernest Kahiro Kimani & Another
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 4 of 2003
- Procedural Posture
- Civil Case / Settlement of Decree After Consent Judgment
- Outcome
- Plaintiff directed to draw a draft decree in accordance with the consent judgment and follow prescribed procedure; no order as to costs.
- Legal Topics
- Decree Settlement, Consent Judgment, Costs Taxation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Arthur K. Igeria t/a Igeria & Co. Advocates
Plaintiff
Ernest Kahiro Kimani & Another
Defendant
Procedural Posture
Civil Case / Settlement of Decree After Consent Judgment
Legal Issues
- 1 Whether the draft decree filed by the Plaintiff accords with the terms of the consent judgment.
- 2 What is the proper procedure for settling a decree where parties disagree on its terms.
Ratio Decidendi
The court held that the draft decree filed by the Plaintiff did not fully accord with the consent judgment previously entered. The proper procedure requires that the decree must strictly agree with the judgment, and if there is disagreement, the process outlined in Order XX Rule 7 must be followed. The Plaintiff is directed to prepare a draft decree that accurately reflects the consent judgment and to submit it for approval by the Defendants. If the Defendants do not approve or there is disagreement, the Deputy Registrar is to act as provided by the Rules, and the matter may be referred to a judge if necessary. No order as to costs was made for this application.
Court Disposition
Plaintiff directed to draw a draft decree in accordance with the consent judgment and follow prescribed procedure; no order as to costs.
Orders
- Plaintiff to draw a draft decree that fully agrees with the consent judgment.
- Plaintiff to follow the procedure under Order XX Rule 7(2) for approval by Defendants.
Full Case Text
Judgment text and source record
6 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBICOMMERCIAL DIVISION, MILIMANICivil Case 4 of 2003ARTHUR K. IGERIAT/A IGERIA & CO. ADVOCATES…………………………..PLAINTIFFVERSUSERNEST KAHIRO KIMANI & ANOTHER……………DEFENDANTSR U L I N G
This matter is for settlement of decree, though it has not been referred to the judge strictly in the manner provided under Rule 7 (4) of Order XX of the Civil Procedure Rules (the Rules). But the Defendants were served with due notice to appear in court on 13th May, 2005, and they did not. Judgment was entered by consent on 8th November, 2004 in the following terms (Mutungi, J.):-
“By CONSENT the Plaintiff’s application of 5th July, 2004 (which sought judgment for costs, inter alia) be allowed as follows:- (a) Respondents to pay the applicants costs of the O.S. (b) The quantum of costs to be agreed or taxed. (c) Interest on costs to accrue at 14% if the costs as agreed or taxed are not paid within 30 days from the date of taxation.”
Under Rule 6(1) of the same Order the decree must agree with the judgment, inter alia. It seems to me that the decree as filed by the Plaintiff does not agree with the judgment, and the Defendants properly took objection to it. Let the Plaintiff draw a draft decree in such a way that it will fully agree with the consent judgment and then strictly follow the procedure set out in subrule (2) of Rule 7 aforesaid. If there is no approval by the Defendants of the draft decree of if there is disagreement, the Deputy Registrar may act as provided in sub rule (3) of the rule. If circumstances so warrant the matter may be placed before a judge as provided for in subrule (4) of the rule. It is so ordered. There will be no order as to costs.
DATED AND SIGNED AT NAIROBI THIS 9TH DAY OF JUNE, 2005. H.P.G. WAWERU JUDGE DELIVERED THIS 10TH DAY OF JUNE, 2005.