[2022] KEHC 14995 (KLR)

Chuaga v Agwanga (Civil Miscellaneous E460 of 2021) [2022] KEHC 14995 (KLR) (Civ) (8 November 2022) (Ruling)

Neutral citation: [2022] KEHC 14995 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Miscellaneous E460 of 2021

JN Mulwa, J

November 8, 2022

Between

Thomas Thuo Chuaga

Applicant

and

Caroline Atieno Agwanga

Respondent

Ruling

1. The Applicant Thomas Thuo Chuaga by an application dated 28/1/2022 seeks numerous orders; in the main: -a.Stay of execution of the trial court’s judgment delivered on the 30/6/2021 in Milimani CMCC No 4673/2020 pending hearing and determination of an intended appeal.b.An order of review, stay or setting aside proceedings of the 27/1/2022 that vacated stay orders issued on the 17/9/2021 and variation or expansion of the orders issued on the 17/9/2021. c.An order allowing the applicant to file a memorandum of appeal.

2. Grounds for the application are stated at the face of the application thereof; and supported by an affidavit of Ms Gulenywa Advocate for the Applicant sworn on the 28/1/2022.

3. In opposing the application, the Respondent has filed grounds of objection dated 14/2/2022; that the application is unmeritorious, lacking in substance, incompetent, and an abuse of the court process as the Applicant is guilty of inordinate delay in bringing the instant application and is brought under the wrong provisions of the law.

4. On the 26/6/2022, parties were directed to file submissions within 14 days. The respondent’s submissions are dated 8/7/2022, while the Applicants are dated 19/9/2022. I have considered them.The application is premised on provisions of Orders 46 Rule 6, 51 Rule 1 & 3, of the Civil Procedure Rules 2010, and Sections 1A, 1B, and 3A of the Civil Procedure Act.

5. The gist of the application is an order dated 17/9/2021 (not provided) whereof upon an application for stay of execution of the trial court’s judgment and extension of time to file appeal out of time, the prayers were granted on both conditions agreed by both parties that:1. The Applicant was to file the memorandum of appeal within 14 days.2. The appellant to provide a bank guarantee for the decretal sum in the sum of Kshs 2 million within 30 days.

6. The Applicant did not comply with the above orders. On the 28/1/2022, the Applicant approached this court with the application seeking variation, review, setting aside of the proceedings that led to the orders of the 17/9/2021, including leave to file an appeal out of time, and also stay of execution, the earlier stay orders having expired.

7. The reasons for non-compliance with the court orders dated 17/11/2021 are stated in the supporting affidavit by Ms Gulenywa Advocate for the Applicant among them that:-The delay to file the Memorandum of Appeal was not intentional; but due to a mistake of previous Counsel handling the matter who failed to inform the firm in time to enable them procure the bank guarantee within 30 days, and therefore the orders sought.It is further argued by the Applicant that, extension for the time to comply would not prejudice the Respondent as the appeal is arguable and has high chances of success, and the application was filed without delay.The Respondent vehemently opposes any orders for variation, setting aside or review by the grounds of opposition and the submissions.

8. It is its statement that the said orders of the 17/11/2021 were consent orders and therefore binding on both parties, and citing the case of; Purcell vs FC Tirigell Limited (1970) 2 ALL ER 671 that: -“…..If a consent order is to be set aside, it can really only be set aside on grounds which would justify setting aside of a contract entered into with knowledge of the material matters by legally competent persons…..”

9. It is trite that a consent order can only be set aside if it is demonstrated that the orders were;1. Obtained fraudulently2. There was collusion between the affected parties3. That the agreement is contrary to public policy4. That there was misrepresentation of material facts or any other sufficient reasonSee EKK & anothervs HKK (2020) eKLR; Kuwinda Rurinja Company Limited Vs Audkuwinda Holdings Limited & 13 others (2019) eKLR.I have perused the impugned court orders. Though not crafted as Consent Orders, the parties agreed to the said terms.

10. I do not find merit in the applicant’s argument in its submissions that they could not file the memorandum of appeal within 14 days. That could have been a good argument in respect of the Record of Appeal where the trial court’s proceedings are necessary. Having gone through the motions by filing the draft Memorandum of Appeal annexed to its earlier application dated 17/9/2021, that argument cannot be taken seriously by any court of law.

11. Further, the orders of 17/9/2021 were time bound- being 14 days thereof. As such, the orders lapsed after 14 days and the Applicant never sought leave to extend the validity of the orders before they lapsed. Therefore, there are no stay orders in force for this court to extend their validity. Indeed, the Hon. Justice Sergon J. before whom the application was placed on the 31/1/2022 find it not appropriate to grant exparte stay orders.

12. Extension of time for doing a thing; in this case, time to comply with court orders has to be sought before the validity of the previous orders expires.As ably stated in the case of Isaac Mugo & 13 others Vs Fred Okengo Matiang’i the Cabinet Secretary, Ministry of Interior and Co-ordination of National Government & others (2020) eKLR,“An extension of time is not automatic or a matter of right. It is an equitable remedy and a party seeking for such a relief must lay sufficient basis for the same…”

13. Looking at the many reliefs sought by the Applicant – prayers No. 1, 2, 3, 4 & 6 - in this instant application, one would be forgiven to state that the said reliefs are “copy and paste” of reliefs sought in the earlier application dated 17/9/2021. Court orders are made to be obeyed, not to be disregarded at will of a party.

14. The Applicant has also invoked provisions of Sections 1A, 1B and 3A of the Civil Procedure Act.The inherent powers of the court embodied therein are not made to enhance abuse of court process but to prevent abuse of court process.Section 1A (1) provides for the objectives of the Act; to facilitate the just, expeditious proportionate and affordable resolution of civil disputes. While pursuing such, Section 1B provides for the Just, efficient disposal of the business of the court, and the efficient use of the available judicial and administrative resources. There is no gainsaying that the Applicant by his advocates cannot be said to be in tune with the same provisions it has cited.

15. The judgment in respect of these proceedings was delivered on the 30/6/2021. The Respondent has been kept away from the judgment fruits for now over two years. The court (Chitebwe J) allowed the Applicant all the prayers it sought by the application dated 17/9/2021. Indeed, the court orders sought to be set aside varied or extended were what the Applicant wanted. All material facts were within the Applicant’s knowledge. It has not been alleged that the orders were tainted with illegality, fraud or misrepresentation.

16. The timelines for compliance too were proposed and agreed upon by the applicant.Justice cuts both ways; to protect all parties in a suit and never one party. Their interests must be protected. It would be extremely prejudicial to the Respondent if the orders sought are granted.

17. For the stated reasons above, I find the application dated 28/1/2022 without merit.Consequently, the application is dismissed with costs to the respondent.Orders accordingly.

DATED, DELIVERED AND SIGNED IN NAIROBI THIS 8TH DAY OF NOVEMBER, 2022J. N. MULWAJUDGE