[2022] KEHC 13355 (KLR)

Erdemann Properties v Kenya Railways Corporation & another (Civil Suit 294 of 2012) [2022] KEHC 13355 (KLR) (Commercial and Tax) (2 September 2022) (Ruling)

Neutral citation: [2022] KEHC 13355 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Civil Suit 294 of 2012

A Mshila, J

September 2, 2022

Between

Erdemann Properties

Plaintiff

and

Kenya Railways Corporation

1st Defendant

Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme

2nd Defendant

Ruling

Background 1. The notice of motion dated October 1, 2020 was brought pursuant to sections 1A, 1B, 3A and 99 of the Civil Procedure Act and Order 51 rule 1 of the Civil Procedure Rules for orders that;a.The consent order recorded virtually in court on July 7, 2020 and extracted on July 9, 2020 be amended by deleting Order No (2) and substituting it with a new Order No (2) to read as follows:The temporary injunction which was placed on the following properties listed hereunder belonging to the 1st defendant be and is hereby lifted and discharged by consent of the parties.LR No 209/6829, MakongeniLR No 209/ 11953, Railway Club along Uhuru HighwayLR No 209/6502, MuthurwaLR No 209/6507, MatumbatoLR No 1/437, Mowbray Court, Kindaruma Road, Nairobi.b.The other orders recorded on July 7, 2020 do remain as drawn.c.Costs be provided for.

2. The application was supported by the grounds on the face of it and by the sworn affidavit of Pharis Mathenge who stated that the parties herein settled this matter by consent and a consent order was subsequently recorded virtually by Judge Nzioka on July 7, 2020 and extracted on July 9, 2020.

3. Subsequently, it transpired that three of the Land Registration Numbers (L R Nos), relating to Makongeni property, Railway Club and Muthurwa outlined in the consent order were incorrect. To correct the errors, the advocates for the parties herein agreed on an amendment to the consent order in order to rectify the errors on the LR Nos.

4. The respondent/plaintiff filed grounds of opposition dated November 23, 2020 on the grounds that;a.The firm of CM Advocates,LLPis properly on record for the plaintiff, having already filed a consent between it and the plaintiff's outgoing advocates, which consent is dated August 12, 2020 and which was duly served upon the applicant on October 15, 2020. b.Prior to recording of the consent herein on July 7, 2020, parties had engaged in substantial negotiations with a view of having this matter amicably settled which had preceded the consent then entered.c.During the said negotiations, parties agreed on certain antecedent preconditions which were to be complied with contemporaneous to the consent which was hitherto recorded herein.d.Parties herein, including the applicant and the 2nd defendant, have been slow in executing such pre-conditions to date. Which inaction has the legal effect of repudiating the covenant(s) between the parties.e.The plaintiff's dissatisfaction based on matters raised at 3 and 4 above has been formally communicated to parties herein and meetings held to try and resolve the same.f.The plaintiff is thereby entirely opposed to the application and prays for its dismissal with costs as it further violates the spirit of amicable resolution of the matter and the concessions thereto.

Applicant’s Case 5. It was the applicant’s submission that section 99 of the Civil Procedure Act allows the court either on its motion or on the application of the parties to correct any clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental omission where it is fully satisfied that it is giving effect to the intention of the court at the time when judgment was given or in the case of a matter which was overlooked.

6. The parties executed the consent dated July 6, 2020 and adopted as an order of the court and subsequently, it transpired that the three of the Land Registration Numbers relating to the Makongeni property, Railway Club and Muthurwa outlines in paragraph 2(a), (b) and (c) of the consent order had typographical errors.

7. The applicant further submitted that the error lies only in the last digits of the three LR Nos in paragraph 2(a)(b) and (c) of the consent order which does not change the intention of the parties in the consent which was to unconditionally withdraw the suit and discharge the temporary injunctions in respect of the three properties which fact is not disputed by any of the parties.

8. The essence of section 99 of the Civil Procedure Act was extensively explored by the Court of Appeal in Synergy Industrial Credit Limited vs Cape Holdings Limited [2021] eKLR.

9. The suit herein remains unconditionally withdrawn and the error in paragraph 2(a), (b) and (c) of the consent was inadvertent and such the application is necessary in order to give full effect to the intention of the court in adopting the consent judgment.

10. On whether or not the court has the jurisdiction to entertain issues raised in the plaintiff’s grounds of opposition, the applicant submitted that the firm of CM Advocates, LLP are not properly on record and cannot therefore purport to file the same. The firm did not obtain an order of the court to take over the conduct of the plaintiff’s case before purporting to appear on behalf of the plaintiff as required under the provision of Order 9 rule 9 of the Civil Procedure Rules and as such the grounds of opposition are incompetent and a nullity. The applicant relied on the cases of John Langat vs Kipkemoi Terer & 2 Others [2013] eKLR and Florence Hare Mkaha vs Pwani Tawakal Mini Coach and Another [2014]eKLR.

11. The plaintiff having voluntarily unconditionally withdrawn the suit is estopped from claiming that the parties allegedly agreed on certain antecedent pre-conditions which they now claim the 1st defendant has been slow in executing and that is why it is objecting to the amendment of the consent order. The vague averments were not supported by any evidence and should be disregarded.

Respondent’s Case 12. In response, the respondent submitted that a consent entered under Order 25 rule 5 cannot be interfered with by a court of law unless obtained by fraud, collusion or is contrary to public policy as was stated in the decision of the Court of Appeal in S M N vs Z M S &3 Others [2017] eKLR and Kenya Commercial Bank Ltd vs Specialized Engineering Co. Ltd [1982]KLR 485.

13. A consent, though an order of the court is by nature a contractual agreement whose existence or non-existence and end is effected through means applicable under contract law. The application seeking to “amend by deleting” Order No.2 of the consent amounts to a variation of the consent. A variation of a consent can only be by consent and not unilaterally.

14. The position on the need to prove vitiating factors for the setting aside or variation has been canvased in Board of Trustees National Social Security Fund vs Michael Mwalo [2015]eKLRand Kericho Guest House Enterprises Ltd v Kenya Breweries Ltd[2018] eKLR cited Setton on judgments and orders (7th Edn) Vol. pg 124.

Issues For Determination 15. The court has considered the application, grounds of opposition and the written submissions and the issue for determination is;a.Whether the consent order of July 7, 2020 should be amended?

Analysis 16. Before delving into the main issue, the court will address the issue of representation of the plaintiff by the firm of The firm of CM Advocates, LLP. There is a consent filed by the firm of CM Advocates LLP dated August,12 between the plaintiff’s outgoing Advocates and CM Advocates LLP itself. The firm of CM Advocates LLP is thus properly on record and therefore the grounds of opposition as filed are properly on record.

17. The application herein was brought under section 99 of the Civil Procedure Act which provides: -“Clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the court either of its own motion or on the application of any of the parties.”

18. It was the applicant’s case that the consent order had typographical errors whereby Makongeni property is LR No 209/6829 but was instead erroneously written as LR No209/11953; Railway Club Property is LR No 209/11953 but was instead erroneously written as LR No 209/11954 and Muthurwa property is LR No 209/6502 but was instead erroneously written as LR No 209/11953.

19. The Court of Appeal in the caseLeonard Mambo Kuria v Ann Wanjiru Mambo [2017] eKLR extensively discussed Section 99 and 100 of the Civil Procedure Act. It is useful to consider what the court stated thus:“The application of these two sections [Sections 99 and 100 of the Civil Procedure Act,] has been considered before in several decisions. They vest a general power to the courts to correct or amend their records. As such they are an exception to the doctrine of ‘functus officio’-- the principle that once a decision has been given, it is (subject to any right of appeal) final and conclusive. It cannot be revoked or varied by the decision-maker. As the court stated in the case of Jersey Evening Post Limited vs Ai Thani[2002] JLR 542 at 550:-“A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling on adjudication must be taken to a higher court if that right is available”.

20. The Court of Appeal examined the mechanics of the application of section 99 of the Civil Procedure Act in the case of Republic v Attorney General & 15 others, Ex-Parte Kenya Seed Company Limited & 5 others[2010] eKLR, stating as follows: -“It is a codification of the common law doctrine dubbed ‘the Slip Rule’, the history and application of which has a wealth of authorities both locally and from common law jurisdictions. It is a rule that applies as part of the inherent jurisdiction of the court, which would otherwise become functus officio upon issuing a judgment or order, to grant the power to reopen the case but only for the limited purposes stated in the section.Some of the applications of the rule are fairly obvious and common place and are easily discernible like clerical errors, arithmetical mistakes, calculations of interest, wrong figures or dates. Each case will, of course, depend on its own facts, but the rule will also apply where the correction of the slip is to give effect to the actual intention of the Judge and/or ensure that the judgment/order does not have a consequence which the judge intended to avoid adjudicating on.The Australian Civil Procedure has provisions in pari materia with section 99. As was stated in the case of Newmont Yandal Operations Pty Ltd v The J Aron Corp & The Goldman Sachs Group Inc [2007] 70 NSWLR 411, the inherent jurisdiction extends to correcting a duly entered judgment where the orders do not truly represent what the court intended.Nearer home the predecessor of this Court in Lakhamshi Brothers Ltd v R. Raja & Sons[1966] EA 313 endorsed that application of the rule, that is, to give effect to the intention of the court when it gave its judgment or to give effect to what clearly would have been the intention of the court had the matter not inadvertently been omitted. Spry JA in Raniga Case (supra) also stated as follows: -A court will, of course, only apply the slip rule where it is fully satisfied that it is giving effect to the intention of the court at the time when judgment was given or, in the case of a matter which was overlooked, where it is satisfied, beyond doubt, as to the order which it would have made had the matter been brought to its attention.What is certainly not permissible in the application of section 99, is to ask the court to sit on appeal on its own decision, or to redo the case or application, or where the amendment requires the exercise of an independent discretion, or if it involves a real difference of opinion, or requires argument and deliberation or generally where the intended corrections go to the substance of the judgment or order”.

21. While the applicant sought to correct the typographical errors on the consent and also argued that the advocates for the parties herein agreed on an amendment to the consent order in order to rectify the errors on the LR Nos; the respondent’s position was that the application seeking to “amend by deleting” Order No 2 of the consent amounts to a variation of the consent which variation of the consent could only be by consent and not unilaterally.

22. In Kenya Commercial Bank Ltd -vs- Benjoh Amalgamated Ltd & Another – Civil Appeal No 276 of 1997, the Court of Appeal rendered that:“Prima facie, any order made in the presence and with consent of counsel is binding on all parties to the proceedings or action --- and cannot be varied or discharged unless obtained by fraud or collusion, or by an agreement contrary to the policy of the court --- or if consent was given without sufficient material facts, or in misapprehension or in ignorance of material facts, or in general for a reason which would enable the court to set aside an agreement.”

23. Taking into consideration the respondent’s objection, granting the applicant’s application would amount to a variation of the consent order. The variation of a consent order is a totally different application from approaching the court to correct typographical errors.

24. It is this court’s considered view that the errors alleged, if clerical in nature owing to an accidental slip which if corrected, would not affect the substance of the consent order and should be amended by consent of both parties. It being a consent order, the errors, if any ought to be corrected and should be agreed upon by both parties.

Findings And Determination 25. For the foregoing reasons this court makes the following findings and determinations;i.The application is hereby struck out;ii.Each party shall bear its own costs.Orders Accordingly.

DATED SIGNED AND DELIVERED ELECTRONICALLY AT NAIROBI THIS 2NDDAY OF SEPTEMBER, 2022. HON. A. MSHILAJUDGEVirtually in the presence of: -Lucy: Court AssistantMr Kamande for Ochieng: Advocate for the ApplicantMr Mugo holding brief for Miller: Advocate for the 2nd Respondent