[2010] KEHC 2157 (KLR)
The court held that it lacked jurisdiction to extend the time for filing a statement of defence after the parties had entered into a consent order with an automatic default clause. The consent order expressly provided that in default of compliance, the judgment on record would revert. The applicant failed to...
Source-derived case information.
- Citation
- [2010] KEHC 2157 (KLR)
- Parties
- Plaintiff: Fanny Moraa Chweya; Defendant: Osoro Omarachi
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Case 265 of 2002
- Procedural Posture
- Civil Case / Ruling on Application to Extend Time for Filing Defence After Consent Order
- Outcome
- application dismissed with costs to the plaintiff
- Judges
- DK Musinga
- Legal Topics
- Consent Judgment, Setting Aside Orders, Extension of Time, Jurisdiction of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fanny Moraa Chweya
Plaintiff
Osoro Omarachi
Defendant
Procedural Posture
Civil Case / Ruling on Application to Extend Time for Filing Defence After Consent Order
Legal Issues
- 1 Whether the court has jurisdiction to extend time for filing a defence after a consent order with an automatic default clause has taken effect.
- 2 Whether the consent judgment can be set aside in the absence of fraud, collusion, or misrepresentation.
Ratio Decidendi
The court held that it lacked jurisdiction to extend the time for filing a statement of defence after the parties had entered into a consent order with an automatic default clause. The consent order expressly provided that in default of compliance, the judgment on record would revert. The applicant failed to demonstrate any fraud, collusion, or misrepresentation that would justify setting aside the consent. Consequently, the court dismissed the application to extend time, upholding the finality and binding nature of the consent order as per established legal principles.
Court Disposition
application dismissed with costs to the plaintiff
Orders
- The defendant's application to extend time for filing a statement of defence is dismissed.
- Costs of the application are awarded to the plaintiff.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISII
Civil Case 265 of 2002
FANNY MORAA CHWEYA....................................PLAINTIFF/RESPONDENT
VERSUS
OSORO OMARACHI...............................................DEFENDANT/APPLICANT
RULING
On 2nd March 2010, Mr. Minda for the applicant and Mr. Oguttu for the respondent recorded the following consent:
“By consent the chamber summons dated
3rd February 2010 be and is hereby allowed
on the following terms:
1. The defendant/applicant do enter appearance and file a statement of defence, if any, within 14 days henceforth.
2. Judgment entered in favour of the plaintiff/respondent on 21st February 2006 be and is hereby set aside.
3. The defendant/applicant do pay the sum of Kshs. 7,000/= only being thrown away costs to the plaintiff within 14 days from the date hereof.
4. In default of either limb of the consent, the judgment on record do revert.”
The defendant failed to file the statement of defence within the stipulated period of time. On 8th April 2010 he filed an application under Order XLIX rule 5of the Civil Procedure Rules and prayed,inter alia, that the time limited for entering appearance and filing a statement of defence in terms of the aforesaid consent be extended for such period as the court may deem just and expedient.
In the supporting affidavit sworn by Mr. Minda, he stated that the statement of defence ought to have been filed by 16th March 2010 but it was filed a day later, on 17th March 2010. He stated that the delay arose out of inadvertence on his part.
The respondent filed grounds of opposition and stated,inter alia, that this court did not have jurisdiction to entertain the application in view of the express terms of the aforesaid consent orders.
I have considered the submissions that were made by counsel on 20th April 2010. This application can simply be determined by reference to the Court of Appeal decision inBROOKE BOND LIEBIG (T) LTD –VS- MALLYA[1975] E.A. 266. It was 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.
In this application counsel for the parties entered into an express consent which had an automatic default clause. The same took effect immediately the defendant failed to file his statement of defence. There is already a judgment on record. It has not been demonstrated that there was any fraud, collusion or misrepresentation as could enable this court to set aside the consent. In the circumstances, this court lacks jurisdiction to interfere with the consent orders above. I therefore dismiss the defendant’s application with costs to the plaintiff.
DATED, SIGNED AND DELIVERED AT KISII THIS 28TH DAY OF JUNE, 2010.
D. MUSINGA
JUDGE.
28/6/2010
Before D. Musinga, J.
Mobisa – cc
Mr. Ochwangi for the Plaintiff
Mr. Minda for the Defendant
Court:Ruling delivered in open court on 28th June, 2010.
D. MUSINGA
JUDGE.