[2014] KEHC 2343 (KLR)
The court found that the consent order marking the appeal as abated was entered into under a mistake of material fact, namely the presumption that the 2nd appellant was also deceased. In reality, the 2nd appellant was alive, present in court, and had been properly substituted for the deceased 1st appellant. Since...
Source-derived case information.
- Citation
- [2014] KEHC 2343 (KLR)
- Parties
- Appellant: Benjamin Machio Lutomia; Appellant: Agneta W. Machio; Respondent: Joseph Isimbishira Wandaka
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 63 of 1999
- Procedural Posture
- Civil Appeal / Ruling on Application to Set Aside Consent Order and Revive Appeal
- Outcome
- Application allowed; consent order set aside; appeal reinstated for hearing.
- Judges
- SJ Chitembwe
- Legal Topics
- Abatement of Suit, Consent Orders, Party Substitution, Mistake of Counsel
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benjamin Machio Lutomia
Appellant
Agneta W. Machio
Appellant
Joseph Isimbishira Wandaka
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Set Aside Consent Order and Revive Appeal
Legal Issues
- 1 Whether the consent order marking the appeal as abated should be set aside due to mistake or ignorance of material facts.
- 2 Whether the appeal had in fact abated given that the 2nd appellant was alive and had substituted the deceased 1st appellant.
Ratio Decidendi
The court found that the consent order marking the appeal as abated was entered into under a mistake of material fact, namely the presumption that the 2nd appellant was also deceased. In reality, the 2nd appellant was alive, present in court, and had been properly substituted for the deceased 1st appellant. Since abatement only applies where there is no substitution or the party is deceased, and the 2nd appellant was always a party to the proceedings in her own right, the appeal had not abated. The court held that the mistake justified setting aside the consent order to allow the appeal to proceed to a full hearing, thereby upholding the applicant's constitutional right to a fair hearing.
Court Disposition
Application allowed; consent order set aside; appeal reinstated for hearing.
Orders
- The application dated 7/4/2014 is granted as prayed.
- The consent order made on 9/2/2012 is hereby set aside.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT KAKAMEGA
CIVIL APPEAL SUIT NO: 63 OF 1999
BENJAMIN MACHIO LUTOMIA.........................................................APPELLANTS
AGNETA W. MACHIO
AND
JOSEPH ISIMBISHIRA WANDAKA .................................................RESPONDENT
R U L I N G
On the 9th of February 2012 counsels for both parties herein attended court and recorded consent. The consent is to the effect that the appeal has abated and the matter to be marked as settled. Each party to bear his own costs. The consent was granted by the court.
The 2nd appellant filed an application dated 7/4/2014 seeking orders that the consent order recorded on 9th February 2012 be set aside and the appeal be allowed to proceed. The application is supported by her affidavit sworn on 7th April, 2014 . CHARLES ISIMBISHIRA WANDAKO filed a replying affidavit sworn on 21st May 2014.
Mr. Osango, Counsel for the applicant submitted that there were two appellants. The 1st appellant who was the 2nd appellant’s husband died. The 2nd appellant is still alive and was present in court. On 21/2/2006, the court allowed the 2nd appellant to substitute her deceased husband. The order that allowed the suit to be marked as having abated was made in error. Counsel is relying on the authorities of TROPICAL FOOD PRODUCTS INTERNATIONAL LTD VS THE EASTERN & SOUTHERN AFRICAN TRADE AND DEVELOPMENT BANK, eKLR (2008) and FLORA N. WASIKE VS DESTIMO WAMBOKO ( 1982-88) KLR 625.
Mr. Ombaye, counsel for the respondent opposed the application. Counsel contends that there was a consent recorded between the parties. There are no good grounds to set aside the consent. There is no mistake that has been pleaded by the applicant. Counsel relies on the case of BROOKE BOND LIEBIG (T) LTD VS MALLYA ( 1957) E.A 266 and that of DIAMOND TRUST BANK OF KENYA LATD -VS PLY & PANELS LTD & ANOTHER – NAKURU Civil Appeal No. 243 of 2002.
The record of the court shows that on 9/2/2012, Mr. Ibenzi, appearing for the appellants and Mr. Ombaye for the respondent recorded a consent to the effect that this suit has abated. Abatement of cases relates to situations where a party has died and there is no possibility of the family members taking over the suit. The main issue for determination is whether the suit has indeed abated.
The 2nd appellant was present in court when this application was being heard on 17/6/204. The memorandum of appeal dated 7/7/1999 also had the applicant’s name as the second appellant. This is an appeal from the Western Provincial Appeals Committee. The record of the Mumias Land Disputes Tribunal also shows that the applicant herein was a 2nd defendant in those proceedings. It is therefore clear to me that the applicant has all along been a party to the proceedings in her own right. She is still alive and would like to pursue her appeal. She also successfully applied to substitute her deceased husband after having been issued with a grant on 12th May 2004. On 21/2/2006 the court allowed the applicant herein to substitute her deceased husband.
Since the applicant is a party to the proceedings and she is alive, I do find that the appeal has not abated. The appeal has not abated as against the 1st appellant as the 2nd appellant substituted him. One of the grounds for setting aside a consent judgment is mistake or ignorance of material facts. I do find that there was mistake on the part of Mr. Imbenzi when he recorded that the suit has abated. The mistake was made due to ignorance of material facts. It is a fact that the 2nd appellant is alive. The court cannot tell the applicant that her matter has abated as it was presumed that she was also deceased. The intention of litigation is to hear the dispute between the parties and make a final determination. This suit had not abated as recorded by consent of both counsels. The applicant is alive and I saw her in court. She has a constitutional right to have her dispute determined by the court.
In the end, I do find that the application dated 7/4/2014 is merited and the same is granted as prayed. The consent order made on 9/2/2012 is hereby set aside. The appeal shall process to full hearing. Costs shall follow the outcome of the appeal.
Dated, delivered and signed at Kakamega this 16th day of October 2014
SAID J. CHITEMBWE
JUDGE