[2004] KEHC 2096 (KLR)
The court found that while a consent order is binding and can only be set aside on limited grounds, the application before it was not to set aside but to vary the terms of payment due to the applicant's changed financial circumstances. The court exercised its discretion to allow the variation, holding that the...
Source-derived case information.
- Citation
- [2004] KEHC 2096 (KLR)
- Parties
- Plaintiff: Hall Equitorial Ltd; Defendant: Olympic Fruit Processors
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 5400 of 1991
- Procedural Posture
- Civil Case / Ruling on Notice of Motion for Review and Variation of Consent Order
- Outcome
- application granted
- Legal Topics
- Consent Orders, Review of Orders, Variation of Decrees
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hall Equitorial Ltd
Plaintiff
Olympic Fruit Processors
Defendant
Procedural Posture
Civil Case / Ruling on Notice of Motion for Review and Variation of Consent Order
Legal Issues
- 1 Whether the consent order of 10th February 1998 can be reviewed or varied to allow payment of the decretal sum in lower instalments.
- 2 Whether the applicant has demonstrated sufficient grounds for the court to exercise its discretion to vary the consent order.
Ratio Decidendi
The court found that while a consent order is binding and can only be set aside on limited grounds, the application before it was not to set aside but to vary the terms of payment due to the applicant's changed financial circumstances. The court exercised its discretion to allow the variation, holding that the respondent would not be prejudiced by the longer repayment period and that the applicant's willingness to pay as circumstances improve justified the indulgence. The previous instalments remain at Kshs.50,000 per month, but from December 1998, the applicant is permitted to pay Kshs.20,000 per month until the decretal amount is fully settled.
Court Disposition
application granted
Orders
- The applicant is allowed to pay Kshs.20,000 per month from December 1998 until payment in full.
- Previous instalments remain at Kshs.50,000 per month.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 5400 OF 1991
HALL EQUITORIAL LTD ………………………….. PLAINTIFF
VERSUS
OLYMIPC FRUIT PROCESSORS ……………….. DEFENDANT
R U L I N G
This is a Notice of Motion brought under Order XLIV Rule 1 of the Civil Procedure Rules in which the applicant is seeking the following orders:-
“1. THAT the consent order of the 10th February, 1998 be stayed.
2. THAT the consent order of 10th February 1998 be reviewed.
3. THAT the guarantors be allowed to liquidate the amount outstanding in instalment of Kshs.20,000/= until payment in full”.
Mr. Kimani for the applicant conceded that the consent order was lawfully entered, and that he was seeking this court’s indulgence so that instead of paying Kshs.50,000/= per month. They should be allowed to pay Shs. 20,000/= per month.
Mr. Kawaja for the respondent has opposed this application citing authorities to show that a consent order can only be set aside if there was fraud, mistake or misrepresentation.
I agree with Mr. Kawaja’s submission that a consent order is indeed a contract which can only be set aside upon well settled criteria – fraud, mistake or misrepresentation. What we have here however is not an application to set aside but to vary the order which was made by consent of the parties. The applicant agreed that he would be paying Shs.50,000/= per month but now comes to court seeking this court’s indulgence so that he could be allowed to be paying Shs.20,000/= per month. The applicant states in his affidavit why he has found himself in this situation. It would appear that if his financial position improves he would be in a position to liquidate the decretal amount. In my view this is a proper case in which this court should exercise its discretion in favour of the applicant since the variation sought would not prejudice the respondent’s position. All it means is that the repayment period will be a little bit longer and in case the applicant makes arrangements to liquidate the decretal amount than the matter would be brought to an end.
In view of the foregoing this application is granted but I would hasten to add that the repayment of Shs.20,000/= per month commences from the beginning of this month of December 1998.
The previous instalments still stand at Shs50,000/= per month. Orders accordingly.
Delivered at Nairobi this 7th day of December, 1998.
E.O.O’KUBASU
JUDGE
7. 12. 98
Coram : E. O’Kubasu, J
No appearance for applicant
Mr. Kawaja for respondent
Court Clerk – Njihia
ORDER
Ruling delivered.
E’ O’KUBASU
JUDGE