[2022] KEHC 10519 (KLR)

Firetech International Ltd & another v Nyanga’au (Civil Appeal E152 of 2021) [2022] KEHC 10519 (KLR) (Civ) (17 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10519 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E152 of 2021

JK Sergon, J

June 17, 2022

Between

Firetech International Ltd

1st Appellant

James Macharia Mundia

2nd Appellant

and

Samuel Nyanga’au

Respondent

Judgment

1. The respondent in this instance lodged a suit before the Chief Magistrate’s Court vide the plaint dated 11th May, 2016 and amended on 1st August, 2016 and prayed for reliefs in the nature of general and special damages plus costs of the suit and interest thereon against the appellant, arising out of a road traffic accident.

2. The respondent pleaded in the amended plaint that on or about 12th June, 2014 he was lawfully walking along Enterprise Road on the pedestrian lane when the motor vehicle registration number KBY 973K (“the subject motor vehicle”) being at all material times owned by the 1st appellant and driven by the 2nd appellant lost control and knocked him down, causing him to sustain serious bodily injuries.

3. The respondent attributed the accident and injuries sustained to negligence on the part of the appellants by setting out the particulars thereof under paragraph 5 of the amended plaint.

4. On being served with summons, the appellants entered appearance and defended the claim.

5. The matter went to trial and upon close of submissions, the trial court delivered judgment on 17th May, 2019 in favour of the respondent and against the appellants by finding the latter 100% liable and by awarding the former general and special damages in the respective sums of Kshs.700,000/= and Kshs.280,500/=.

6. Subsequently, the parties herein entered into a consent dated 5th September, 2019 wherein it was agreed inter alia, that the aforementioned judgment be set aside and substituted with a judgment in favour of the respondent and against the appellants in the all-inclusive sum of Kshs.900,000/=; that High Court Civil Appeal No. 321 of 2019 be marked as settled; and that High Class Auctioneers (“the Auctioneers”) do file their Bill of taxation within 14 days for purposes of taxation of the auctioneer costs. The consent was adopted as an order of the court on 25th November, 2019 and an order to that effect was subsequently issued on 2nd March, 2020.

7. Going by the record, the appellants thereafter filed the Notice of Motion dated 28th August, 2020 and amended on 20th November, 2020 and sought for a refund of the sum of Kshs.350,000/= from the auctioneers, together with all accrued interest. The Motion was opposed by the auctioneers.

8. Upon hearing the parties on the above Motion, the trial court by way of the ruling delivered on 3rd March, 2021 dismissed it with costs to the auctioneers.

9. It is apparent that the appellants being aggrieved by the abovementioned ruling, have lodged the memorandum of appeal dated 23rd March, 2021 to challenge the same, by putting in the following grounds:i.Thatthe learned trial magistrate erred in law and fact in failing to find that High-Class Auctioneers breached the terms of the Magistrate Court order dated the 2nd of March, 2020. ii.Thatthe learned trial magistrate erred in law and fact in failing to find that High-Class Auctioneers are in contempt of the Magistrate Court Order dated the 2nd of March, 2020. iii.Thatthe learned trial magistrate erred in law and fact in failing to find that High-Class Auctioneers are bound to obey the Magistrate Court Order dated the 2nd of March, 2020. iv.Thatthe learned trial magistrate erred in law and fact by finding that High-Class Auctioneers were not a party to the proceedings hence were not bound by the order dated the 2nd of March, 2020. v.Thatthe learned trial magistrate erred in law and fact by disregarding the submissions and authorities by the defendant/applicant and consequently arriving at a wrong decision.

10. Pursuant to the directions by this court, the parties filed and exchanged written submissions on the appeal.

11. The appellants submit that the auctioneers were at all material times made aware of the existence of the consent order dated 2nd March, 2020 and that upon failing to adhere to the terms thereof, they ought to have been held in breach of the consent order by the trial court.

12. The appellants therefore submit that the trial court ought to have found the auctioneers to be in breach of the court order and hence ought to have found them liable for contempt of court.

13. To support their arguments above, the appellants have cited inter alia, the case of Eliud Muturi Mwangi (Practising in the name and style of Muturi & Company Advocates) v LSG Lufthansa Services Europa/ Africa GMBH & another [2015] eKLR where the court held that:“The law is that any person who has committed an act of contempt of court is liable for indictment. Therefore, even third parties who are not parties in a suit may be committed for contempt of court and classic examples are contempt on the face of the court, contempt by officers of a company or corporation, contempt by persons who are claiming under the title of a party in a suit or as assigns or successors in title.”

14. For all the foregoing reasons, the appellants urge this court to allow the appeal and to set aside the impugned ruling.

15. In retort, the auctioneers who also put in written submissions argue that the trial court correctly found that the auctioneers were not a party to the suit and hence the orders in place could not be enforced against them.

16. The auctioneers further argue that the appellants have failed to demonstrate by way of evidence that the alleged sum of Kshs.350,000/= was paid out to them on behalf of the appellants, contrary to the proviso of Sections 107 to 109 of the Evidence Act which stipulates that a person who desires judgment on liability must prove that the facts pleaded exist.

17. Consequently, the auctioneers are of the view that the appeal is deserving of dismissal with costs.

18. From the record, it is apparent that the respondent did not directly participate at the hearing of the appeal.

19. I have considered the contending submissions and authorities cited on appeal. I have also re-evaluated the material which was placed before the trial court. Upon doing so, I will tackle the five (5) grounds of appeal under the two (2) limbs hereunder.

20. The first limb concerns itself with whether the learned trial magistrate acted correctly in dismissing the application in question.

21. As earlier noted, the appellants by way of the Amended Motion sought for a refund of the sum of Kshs.350,000/ from the auctioneers on the premise that by way of the consent order dated 2nd March, 2020 the auctioneers had been ordered to file their auctioneer Bill of Costs for taxation and to serve the same upon the firm of Kinyanjui Njuguna & Co. Advocates (“the appellants’ advocate”) within 14 days therefrom, failing which all monies paid to the auctioneers would be refunded by the said auctioneers.

22. In his supporting affidavit to the Motion, advocate Kinyanjui Theuri reiterated the above averments and further stated that the 14 days had lapsed without the appellants’ advocate receiving the Bill of Costs and hence the Motion seeking a refund in the sum of Kshs.350,000/= which had previously been paid to the auctioneers by the appellants’ advocate.

23. In reply, Elisha Ishmael Esikote stated that the auctioneers were not a party to the suit or to the consent order, and that at the time of its adoption, the clauses therein and relating to the auctioneers had already been overtaken by events since the latter had already negotiated their fees and the same had been settled by the appellants.

24. The deponent further stated that it is for the above reasons that the auctioneers did not deem it necessary to file their Bill of Costs for taxation pursuant to the consent order.

25. In his ruling, the learned trial magistrate reasoned that the auctioneers were not a party to the suit and/or to the consent and hence could not be bound by its terms.

26. From my re-examination of the material and trial proceedings, it is apparent that the consent order made on 2nd March, 2020 included terms concerning the auctioneers in the manner indicated hereinabove.

27. From my further re-examination of the material and trial proceedings; and as already established above, it is not in dispute that the auctioneers were not a party to the suit or to the consent and that the consent was entered into purely between the appellants and the respondent, through their respective advocates and subsequently adopted as an order of the court.

28. It is also not in dispute that the auctioneers were merely served with a copy of the consent order after the same had already been entered into.

29. In the circumstances, I am in agreement with the reasoning by the learned trial magistrate that since the auctioneers were not party to the suit or to the consent order, the same could not be enforceable against them in the absence of their participation. In my view, it is apparent that the auctioneers’ sole involvement in the matter was for purposes of enforcing the decree.

30. The law on consent agreements is similar to that on contracts in general, in that consents have the power to bind all parties thereto and to also bind those claiming under them. In finding so, I borrow from the case of Paul Kiplangat Keter v John Koech [2021] eKLR where the court held thus:“The Court of Appeal in the case of Kenya Commercial Bank Ltd v. Specialized Engineering Co. Ltd (1982) KLR P. 485 held that:“A consent order entered into by counsel is binding on all parties to the proceedings…”

31. Further to the foregoing, upon my study of the material tendered at the trial, I am convinced as to the plausibility of the position taken by the auctioneers that the issue of auctioneer costs/fees had been settled beforehand through the sum of Kshs.350,000/= and hence the terms of the consent order pertaining to the auctioneers had been overtaken by events.

32. I therefore support the reasoning and finding by the learned trial magistrate and have no basis on which to find that the auctioneers acted in breach of the consent order and should therefore be held in contempt of court.

33. The second limb of the appeal concerns itself with whether the learned trial magistrate disregarded the submissions and authorities cited by the appellants before it.

34. Upon my perusal of the record and impugned ruling, I did not come across anything to indicate that in arriving at his decision, the learned trial magistrate overlooked the submissions made by the parties or overlooked any other relevant material.

35. Upon taking into account all the foregoing factors hereinabove, I therefore see no reason to interfere with the decision by the learned trial magistrate.

36. The upshot therefore is that the appeal is hereby dismissed for lack of merit, with costs to the auctioneers.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 17TH DAY OF JUNE, 2022. ............................J. K. SERGONJUDGEIn the presence of:................... for the Appellant................... for the Respondent................... for the Auctioneers