[2017] KEHC 3196 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

CIVIL APPEAL NO. 42 OF 2016

GEOFFREY MWANGI M’NABIA …………….………. 1ST APPLICANT

LAARE KAMUKUNJI STORES LIMITED …....…….. 2ND APPLICANT

VERSUS

FRANCIS MURIITHI ……………………………..……… RESPONDENT

R U L I N G

1. Before me is a Motion on Notice dated 20th June, 2017 brought under Order 50 and 51 of the Civil Procedure Rules, sections1A, 1B and 95 of the Civil Procedure Act. Article 159 of the Constitutionhas also been invoke. The application seeks two prayers; that there be a temporary stay of execution including the lifting of the warrants of attachment and that there be extension of time within which to comply with the order of this court made on 24th January, 2017.

2. The Motion was supported by the Affidavit of Joseph Mwai, a legal officer with UAP Insurance Company, sworn on 20th June, 2017. The grounds for the application as contained in the body of the motion and affidavit were; that an order had been made on 24th January, 2017 for the payment of Kshs.400,000/- within 7 days and the balance of Kshs.1,206,653/- be deposited in a joint account within 30 days; that since the Applicant's insurer was undergoing restructuring and one of its employees left, the file for the subject matter was misplaced; that the warrants of attachment herein and proclamation were illegal as there were no orders in this matter authorizing the same. It was deposed that the mistake was excusable and the prayers sought should be allowed.

3. The application was opposed vide a Replying Affidavit of Carlpeters Mbaabu sworn on 28th June 2017. Mr. Mbaabu swore that the order of 24th January, 2017 was made by consent of the parties; that the same had not been complied with for five months which was inordinately long; that there was no evidence that there was any restructuring being undertaken by the UAP Insurance Company; that in any event the appeal had not been prosecuted.

4. At the hearing of the application, both Counsels relied on their respective affidavits and urged the Court to write a ruling based on the said affidavits. In addition, Mr. Carlpeters relied on the case on Flora N. Wasike vs. Destimo Pontikos (1982-88_KAR 625 for the proposition that a consent order can only be set aside on the same grounds as would justify the setting aside of a contract.

5. I have carefully considered the record and the affidavits on record. This is an application for stay of execution and setting aside of the warrants and proclamation on the basis that they are irregular and for enlargement of time within which to comply with the order of this court made on 24th January, 2017. The Applicants argued that the order of 24th January, 2017 was incapable of execution. The Respondent did not address that issue.

6. The substantive matter that is pending before this Court is the appeal against the judgment and decree of the Maua CMCC NO. 261 of 2014between the parties. The order of 24th January, 2017 stayed the execution of that decree and further ordered that part of the decretal sum be paid within seven days and the balance be deposited in a joint interest earning account within thirty days. The Applicants were also required to prosecute their appeal within 90 days. There was a default clause for execution to proceed in the event of any default.

7. I have carefully perused the record. I have noted that the Respondent extracted the order of 24th January, 2017 on 17th March, 2017. He then applied for execution thereof whereby the Deputy Registrar of this Court issued warrants of attachment on 17th May, 2017. The execution was issued under this appeal and for the sum of KShs. 1,670,336/-. Order 22 of the Civil Procedure Rules is very clear. Execution processes can only be undertaken in respect of a court decree. This Court has not made any decree capable of being executed. The order of 24th January, 2017 only stayed the execution of the lower court decree. If and when there was any default, the Respondent should have proceeded with the execution in the lower court file and not this file. There is no judgment in this appeal from which a decree can issue and execution proceeded with.

8. Accordingly, to the extent that warrants were issued from this court on this appeal, the same were issued in error. They were irregular and the proclamation arising therefrom cannot stand. Those warrants and the Proclamation are accordingly set aside forth with. Since the error was by the Respondent, he will bear the expenses of the auctioneer.

9. The next issue is the prayer for extension of time within which to comply with the order of 24th January, 2017. The principles applicable in an application for extension of time are well known; the court has to consider the length of the delay; if inordinate, whether the delay has been explained ie. the reasons for the delay and finally, whether there would be any prejudice if time for compliance is extended.

10. The subject order was made on 27th January, 2017. The Applicants had 7 days, 30days and 90 days within which to comply with the various segments of that order. The present application was made on 21st June, 2017. The period from when compliance was required and the date of the application was long and inordinate in the circumstances.

11. The reason advanced for the delay was that due to some restructuring which the UAP Insurance was undertaking and for the reason that one of its employees, one Doreen Ntongai, who was handling the matter left abruptly, the file for this claim got misplaced and or forgotten until the proclamation. Although the Respondent submitted that there was no evidence of the said allegation, this Court’s view is that what was deposed to is possible and plausible. The Court is satisfied that there has been explanation as to the delay in making the payments but up to the time of the making of the application. As regards prejudice, none was alleged by the Respondent and the Court cannot speculate of any, save to state that there would be delay in the enjoyment of the proceeds of his litigation. An order for costs can compensate him

12. However, the Court notes that there was no explanation whatsoever that was given on what effort the Applicants have made to have the appeal prosecuted. Not even a letter to the lower court applying for proceedings was annexed to the application. That in my view, shows total lack of interest with their appeal. That must be as a result of the relief from execution which the Applicants are enjoying.

13. The other issue is the failure to indicate the length of time required to comply with the subject order. Good practice dictates that an applicant who wishes the court to extend time that has been fixed for compliance, he should indicate to court that notwithstanding the difficulties encountered, if a specified time is granted, he will be able to comply. That is not the case here. Indeed, it was expected as a sign of good faith that the time of making the application at least the cheque for the first instalment of KShs.400,000/= should have been released to the Respondent’s Advocates.

14. Finally, the order of 24th January, 2017 was made by consent. That being the case, it can only be varied by the consent of the parties. In the case of Purcell vs. F C Trigell Ltd [1970] 3ALL ER 671, the court held at page 676:

‘’It seems to me that, if a consent order is to be set aside, it can really only be set aside on grounds which would justify the setting aside of a contract entered into with knowledge of the material matters by legally competent persons, and I see no suggestion here that any matter that occurred would justify the setting aside or rectification of this order looked at as a contract.”

15. Further, in Brooke Bond Liebig Ltd v. Mallya [1975] EA 266 at 269 the Court of Appeal for East Africa held:-

“A court cannot interfere with a consent judgment except in such circumstances as would affords a good ground for varying or rescinding a contract between the parties”.

16. I have looked at the order of 24th January, 2017 and I cannot see any ground to set it aside looked at as a contract.

17. The upshot is that the application partially succeeds to the extent that the warrant of attachment dated 14th June, 2017 and the proclamation dated the same day are hereby set aside. The prayer for extension of time is hereby declined. Each party to bear his own costs of the application.

DATED and DELIVEREDat Meru this 5th day of October, 2017.

A.MABEYA

JUDGE