[2013] KEHC 1387 (KLR)
The court found that the applicant failed to attend the hearing and did not demonstrate any valid grounds for reviewing or setting aside the consent order. The medical evidence presented was outdated and did not establish any serious illness that would justify a reduction in instalments. Furthermore, the legal...
Source-derived case information.
- Citation
- [2013] KEHC 1387 (KLR)
- Parties
- Plaintiff: Elisha Chebii Chesinya; Defendant: Dennis W. Michuki
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 49 of 2008
- Procedural Posture
- Civil Case / Ruling on Application to Review Consent Order and Reduce Instalments
- Outcome
- application dismissed with costs to the respondent
- Judges
- RPV Wendoh
- Legal Topics
- Consent Judgments, Review of Orders, Setting Aside Consents
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elisha Chebii Chesinya
Plaintiff
Dennis W. Michuki
Defendant
Procedural Posture
Civil Case / Ruling on Application to Review Consent Order and Reduce Instalments
Legal Issues
- 1 Whether the consent order entered between the parties can be reviewed or set aside on the grounds advanced by the applicant.
- 2 Whether the applicant has demonstrated sufficient cause to warrant reduction of instalments payable under the consent order.
Ratio Decidendi
The court found that the applicant failed to attend the hearing and did not demonstrate any valid grounds for reviewing or setting aside the consent order. The medical evidence presented was outdated and did not establish any serious illness that would justify a reduction in instalments. Furthermore, the legal standard for setting aside a consent judgment—fraud, collusion, or other contract-terminating grounds—was not met. The application was therefore dismissed for lack of merit, and the consent order remained in force.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application dated 27/5/2013 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
17 paragraphs
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL CASE NO. 49 OF 2008
ELISHA CHEBII CHESINYA……..PLAINTIFF/RESPONDENT
VERSUS
DENNIS W. MICHUKI……………..DEFENDANT/APPLICANT
RULING
The application dated 27/5/2013, was filed by the defendant/applicant through the firm of Mongeri & Co. Advocates. They came under certificate of urgency on 12/6/2013, and the court gave them today’s hearing date in the presence of the respondent’s counsel. The respondent filed a replying affidavit opposing the application. Today, neither the applicant nor his counsel have appeared in court. Ms Said, counsel for the respondent, was present and ready to proceed. In view of the fact that the applicant and his counsel did not appear, the court will presume that they are no longer interested in prosecuting their application which was strenuously opposed by the replying affidavit sworn by Elisha Chebii, the respondent herein. The respondent deponed that the consent which the applicant seeks to review was only entered into a month before the applicant sought to have it reviewed on grounds of illness; that the medical reports that were exhibited by the applicant were for the year 2011 and the only current medical report did not disclose that he had any serious ailments. He was referred for further examination. Bearing the above depositions in mind, and the fact that the applicant and counsel failed to attend court to prosecute their application, I find no merit in the application for reducing the instalments payable. In addition, a consent order had been recorded and it can only be set aside by another consent on grounds upon which a contract can be terminated. The application was opposed meaning that there is no consent. In Brooke Bond Liebig (T) Ltd v Halya (1975)EA 266, the Court of Appeal held that:-
“…a consent judgment may only be set aside for fraud, collusion or for any reason which would enable the court to set aside an agreement. See also Flora Wasike v Destimo Wamboko (1982-88)1 KAR 625. No grounds for interfering with the consent exist in this case.
For all these reasons, the application dated 27/5/2013, lacks merit and is hereby dismissed with costs to the respondent.
DATED and DELIVERED this 8th day of October, 2013.
R.P.V. WENDOH
JUDGE
PRESENT:
Ms Said for the plaintiff/respondent
N/A for the defendant/applicant
Kennedy – Court Assistant