[2020] KEHC 3115 (KLR)

[2020] KEHC 3115 (KLR)

The court found that the application to set aside the consent order of 14th September 2017 by the Plaintiffs (application of 4th October 2017) failed because there was no evidence of coercion, undue influence, or misrepresentation by the trial court. The parties, through their advocates, had the opportunity to object or withhold consent but instead signed the consent and derived benefit from it, including halting the auction and attending meetings as agreed. The court held that the trial judge exercised discretion properly and that the process leading to the consent was regular and lawful. However, the application by the 4th and 5th Defendants (application of 30th October 2017) succeeded...

Citation
[2020] KEHC 3115 (KLR)
Parties
Plaintiff: Fatuma Mohamed Haji; Plaintiff: Asha Mohamed Heshi; Defendant: African Banking Corporation Limited; Defendant: Fast Energy Limited; Defendant: Ali Jama Ali; Defendant: Hassan Mohamed Yusuf; Defendant: Mohamed Jama Ali; Interested Party: Hussein Mohamed Yusuf
Court
High Court
Court Station
High Court at Nairobi (Milimani Commercial Courts)
Jurisdiction
Kenya
Judgment Date
17 September 2020
Case Number
Commercial Suit 327 of 2017
Procedural Posture
Civil Application / Ruling on Applications to Set Aside Consent Order and for Injunctions
Outcome
Application of 4th October 2017 dismissed; application of 30th October 2017 upheld; consent order of 14th September 2017 set aside; parties revert to status quo ante; costs in the cause.
Judges
MW Muigai
Legal Topics
Consent Judgments, Injunctive Relief, Guarantees and Suretyship, Statutory Power of Sale, Fraud and Forgery, Right to Fair Hearing
Source Language
English
Banking and Finance Civil Procedure Consent Judgments Injunctive Relief Guarantees and Suretyship Statutory Power of Sale Fraud and Forgery Right to Fair Hearing

Case Brief

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Parties

Fatuma Mohamed Haji

Plaintiff

Asha Mohamed Heshi

Plaintiff

African Banking Corporation Limited

Defendant

Fast Energy Limited

Defendant

Ali Jama Ali

Defendant

Hassan Mohamed Yusuf

Defendant

Mohamed Jama Ali

Defendant

Hussein Mohamed Yusuf

Interested Party

Procedural Posture

Civil Application / Ruling on Applications to Set Aside Consent Order and for Injunctions

Legal Issues

  1. 1 Whether the consent order dated 14th September 2017 should be set aside for coercion, undue influence, misrepresentation, or lack of participation by some parties.
  2. 2 Whether the applications dated 4th October 2017 and 30th October 2017 should be upheld or dismissed.
  3. 3 Whether the 4th and 5th Defendants, who were not present or represented, can be bound by the consent order.

Ratio Decidendi

The court found that the application to set aside the consent order of 14th September 2017 by the Plaintiffs (application of 4th October 2017) failed because there was no evidence of coercion, undue influence, or misrepresentation by the trial court. The parties, through their advocates, had the opportunity to object or withhold consent but instead signed the consent and derived benefit from it, including halting the auction and attending meetings as agreed. The court held that the trial judge exercised discretion properly and that the process leading to the consent was regular and lawful. However, the application by the 4th and 5th Defendants (application of 30th October 2017) succeeded...

Court Disposition

Application of 4th October 2017 dismissed; application of 30th October 2017 upheld; consent order of 14th September 2017 set aside; parties revert to status quo ante; costs in the cause.

Orders

  • The application of 4th October 2017 is dismissed.
  • The application of 23rd/30th October 2017 is granted/upheld.