[2018] KEHC 1928 (KLR)
The court found that the extracted order erroneously referred to the 1st defendant as having retransferred properties to the plaintiff, whereas the obligation was in fact on the 3rd defendant. The record and related consent orders in other suits demonstrated that the 1st and 2nd defendants were not parties to the...
Source-derived case information.
- Citation
- [2018] KEHC 1928 (KLR)
- Parties
- Plaintiff: British American Asset Managers Limited; Defendant: Elizabeth Nailantei Nkukuu; Defendant: Shiv Arora; Defendant: Acorn Group Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 352 of 2014
- Procedural Posture
- Civil Suit / Ruling on Application to Correct Consent Order
- Outcome
- application allowed
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Consent Orders, Error on Face of Record, Correction of Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
British American Asset Managers Limited
Plaintiff
Elizabeth Nailantei Nkukuu
Defendant
Shiv Arora
Defendant
Acorn Group Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Correct Consent Order
Legal Issues
- 1 Whether there is an apparent error on the face of the record in the extracted order referring to the 1st defendant instead of the 3rd defendant.
- 2 Whether the court should correct the order to substitute the 1st defendant with the 3rd defendant in paragraph 1(ii) of the consent order.
Ratio Decidendi
The court found that the extracted order erroneously referred to the 1st defendant as having retransferred properties to the plaintiff, whereas the obligation was in fact on the 3rd defendant. The record and related consent orders in other suits demonstrated that the 1st and 2nd defendants were not parties to the relevant consent, and no obligation was imposed on them. The court held that a party cannot be bound by an order to which they were not a party, and that the error was apparent on the face of the record. The court exercised its jurisdiction to correct the error, allowing the application to substitute the 3rd defendant for the 1st defendant in the relevant paragraph of the order....
Court Disposition
application allowed
Orders
- The application by the 1st and 2nd defendants is allowed in terms of prayer No. 2.
- The order extracted on 23rd October, 2015 is corrected to substitute the 3rd defendant for the 1st defendant in paragraph 1(ii).
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL SUIT NO. 352 OF 2014
BRITISH AMERICAN ASSET MANAGERS LIMITED...........PLAINTIFF
VERSUS
ELIZABETH NAILANTEI NKUKUU...............................1ST DEFENDANT
SHIV ARORA ......................................................................2ND DEFENDANT
ACORN GROUP LIMITED...............................................3RD DEFENDANT
RULING
This is an application by the 1st and 2nd defendants dated 17th and filed on 19th January, 2017 for the substantive order that this court corrects the error from the order extracted by the plaintiff on 23rd October, 2015. The reasons are set out on the face on the application alongside an affidavit sworn by the 1st defendant. The application is opposed by the plaintiff.
The plaintiff had filed this suit on 28th October, 2014 alongside other suits namely HCCC No. 352 OF 2014, HCCC No. 354 OF 2014, HCCCC no. 361 of 2014 and HCCC No. 362 of 2014.
The plaintiff subsequently moved to withdraw all the suits including the present one and recorded consent orders thereunder. It is the position of the 1st and 2nd defendants that there is an apparent error in the order extracted in this suit that is HCCC No. 352 of 2014 and in particular paragraph 1(ii) which refers to the 1st defendant instead of the 3rd defendant. That paragraph reads as follows,
“The properties acquired through the monies transferred from the plaintiffs have been retransferred to the plaintiff by the 1st defendant.”
The application now seeks to substitute the 1st defendant for the 3rd defendant for the reason that, it was the 3rd defendant which was charged with fulfilling the obligation with respect to properties acquired through the monies belonging to the plaintiff. It is submitted that the 1st defendant was never a party to the consent signed and further, in the other civil suits no obligation was imposed on the 1st defendant.
Parties have made oral submission in addition to written submission on record and cited some authorities. I have considered the material placed before me and related the same to the pleadings resting with the consent orders referred to. It has not been demonstrated by the plaintiff what prejudice could be visited upon it if the order sought is granted. It has been demonstrated by reference to the record itself that, at no time did Mr. Amoko who is on record for the 1st and 2nd defendants commit himself to the consent as set out.
The consent endorsed in HCCC No. 353 of 2014 which may be termed as the holding file, is instructive. Counsel for the plaintiff clearly stated that the plaintiff’s claim had been compromised on the basis of restrictions effected by the 3rd defendant. The 1st and 2nd defendants were not party to any consent because that was between the plaintiff and the 3rd defendant. The formal order as extracted was not consistent with the settlement as regards paragraph 2. It is clear therefore that there is an apparent error on the face of the record.
A party may not be bound by an order in which they were not party to and therefore, when the totality of the facts is interrogated the order sought by the defendants should succeed.
Having looked at the authorities cited alongside the submissions by counsel, I am persuaded that the order sought should be allowed. Accordingly, the application by the 1st and 2nd defendants is allowed in terms of prayer No. 2 thereof. Each party shall bear their own costs.
Dated, signed and delivered at Nairobi this 7th day of November, 2018.
A. MBOGHOLI MSAGHA
JUDGE