[2023] KEHC 24064 (KLR)

Communications Relay Satellite Limited v Radio Frequency Systems (E.A) Limited t/a Radio Frequency Systems Limited; Gordon Ogado t/a Ogado & Company Advocates (Interested Party) (Commercial Case E068 of 2020) [2023] KEHC 24064 (KLR) (Commercial and Tax) (27 October 2023) (Ruling)

Neutral citation: [2023] KEHC 24064 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts)

Commercial and Tax

Commercial Case E068 of 2020

DAS Majanja, J

October 27, 2023

Between

Communications Relay Satellite Limited

Plaintiff

and

Radio Frequency Systems (E.A) Limited t/a Radio Frequency Systems Limited

Defendant

and

Gordon Ogado t/a Ogado & Company Advocates

Interested Party

Ruling

1. On 05. 03. 2020, the Plaintiff filed suit seeking Kshs. 77,218,000. 00 from the Defendant arising out of civil works carried out by the Plaintiff on behalf of the Defendant at Safaricom PLC sites within Kenya. A few months later on 16. 06. 2020, the firms of Ongicho-Ongicho & Co. Advocates (“Ongicho”) representing the Plaintiff and that of Ogado & Co. Advocates (“Ogado”) representing the Defendant entered into a consent that was adopted as an order of the court on 22. 06. 2020 (“the Consent”) on the following terms:1. That the plaintiff/Applicant and the Defendant /Respondent to comply with the consent order dated 18th May 2020 within 30 days.2. That the defendant do concede to pay the plaintiff the sum of Kshs. 77,218,000/= from funds in the joint bank account in the names of M/S Ongicho-Ongicho Advocates and M/S Ogado & Company Advocates within 30 days.3. That the plaintiff do negotiate with the defendant on the costs of the suit within 30 days failing which the Plaintiff be and is at liberty to present its bill of cost for taxation.4. That this matter be marked as settled.

2. The Plaintiff and the Defendant have now filed applications dated 17. 032023 and 22. 03. 2023 respectively seeking to set aside the Consent and have the firms of Omwanza & Areba Associates and Midenga & Company Advocates replace the firms of Ongicho and Ogado. The Plaintiff’s application is supported by the grounds on its face and the affidavits by its director, Aston Kipngeno Kirui, sworn on 17. 03. 2023 and 18. 05. 2023. The firm of Ongicho opposes the application through the replying affidavit of its advocate Evans A. Ongicho sworn on 03. 05. 2023. The Defendant’s application is supported by the grounds on its face and the affidavits sworn on 22. 03. 2023 and 17. 05. 2023 by Simon Wallington Horner, the Defendant’s majority shareholder/director and Chief Executive Officer. The application is opposed by Evans A. Ongicho’s replying affidavit sworn on 03. 05. 2023 and that of Ogado sworn on 03. 05. 2023 by its sole proprietor, Gordon O. Ogado. The parties have also filed written submissions in support of their respective positions.

3. The parties aver that the firms of Ongicho and Ogado colluded and fraudulently registered this matter with the sole aim of defrauding the Defendant of its resources and that the same people also engineered the Consent which is fraudulent.

4. The Defendant denies that it owes the Plaintiff Kshs. 77,218,000. 00 as alleged or at all and the Plaintiff agrees with this position. It avers that it is only owed Kshs. 5,650,000. 00 which the parties have agreed to settle. The parties state that they did not instruct Ongicho and Ogado to represent them or execute the Consent or any other such consent and that the Consent is contrary to public policy and will ultimately paint this Court in improper light and besmirch the Judge’s character for no other reason other than the Advocates on record mean to defraud and mislead the Court. Further, they point out that the verifying affidavit in support of this suit has never been commissioned hence the suit is incompetent.

5. According to the Plaintiff, Ongicho failed to act in accordance with the instructions issued to it, failed to follow lawful instructions and in fact created his own instructions. On its part, the Defendant contends that the Consent was hurriedly entered into even before the Defendant entered appearance and/or filed a Statement of Defence. The parties reiterate that the Consent was obtained by fraud, deceit, non-disclosure and concealment of material facts and fraudulent misrepresentation of material facts and that the Defendant was denied a chance to be heard before the foregoing adverse decision was made.

6. For these reasons the parties urge the court to allow their applications and to obviate imminent prejudice, loss and difficulties to the Defendant.

7. The principals of the firms of Ongicho and Ogado have filed extensive depositions outlining the circumstances under which the Consent was recorded. The both deny allegations of any wrongdoing and affirm that they had instructions to record the Consent. I do not wish to go through the allegations and the response because they may be subject of adjudication in another forum where the conduct of the advocates may be called into issue.

8. The question for determination is whether the court should set aside the Consent. A consent is basically an agreement between the parties to the suit. While the Plaintiff and the Defendant that they gave the advocates previously on record instructions to record the Consent, they do not deny that they instructed the advocates to file the suit and defence respectively. This means that suit belongs to the parties and they can, if they so decide to set aside the Consent in whatever manner they wish. The advocates on record, as agents of their clients, have no greater right than their principals to insist on performance of the Consent if their principals have agreed that the Consent shall be set aside.

9. Since both parties are agreed that the Consent must be set aside, the principles guiding court where a party seeks to set aside a consent judgment do not apply as both parties bound by the agreement are agreed that it should be set aside.

10. For these reasons, I allow the Plaintiff’s application dated 17. 03. 2023 and the Defendant’s application dated 22. 03. 2023 on terms that the Consent dated 22. 06. 2023 be and is hereby set aside. As the parties have settled the claim as between themselves there is nothing left for trial hence the matter is marked as settled as the court is permitted to record the compromise of the suit between parties.

11. In the ordinary course I would have ordered the firms of Ongicho-Ongicho & Co. Advocates and Ogado & Co. Advocates to pay the costs of the respective applications but as I have stated, any issues between them and their respective clients can only be determined in another forum.

12. I therefore make the following dispositive orders:a.The Plaintiff’s application dated 17. 03. 2023 filed by Omwanza & Areba Associates Advocates and the Defendant’s application dated 22. 03. 2023 filed by Midenga and Company Advocates are allowed on terms that the Consent dated 22. 06. 2023 be and is hereby set aside and the suit be and is hereby marked as settled on terms agreed by the parties.b.The shall be no order as to costs.

SIGNED AT DUBAID. S. MAJANJAJUDGEDATED AND DELIVERED AT NAIROBI THIS 27TH DAY OF OCTOBER 2023. A. MABEYAJUDGECourt Assistant: Mr Michael Onyango