[2022] KEHC 10287 (KLR)

Hill v Criticos (Civil Suit 226 of 2015) [2022] KEHC 10287 (KLR) (Commercial and Tax) (8 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10287 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Civil Suit 226 of 2015

A Mshila, J

July 8, 2022

Between

Victoria Anna Hill

Plaintiff

and

Basil Criticos

Respondent

Ruling

Background 1. The Applicant filed a Notice of Motion dated 14th November 2018 under Order 8 Rule 3 (1 & 3) 5 of the Civil Procedure Rules; The Application was supported by the sworn Affidavit of Oscar Avedi who sought the following orders;a.The Defendant be granted leave to amend his Defence as per the annexed amended Defence and Counter Claim;.b.The costs of this Application be in the cause.

2. The Applicant stated that the Pleadings herein have been closed and the Defendant/Applicant has appointed an alternative Advocate and needs to clearly set out the real issues for determination between the parties. The said application is necessary for the determination of the real issues in controversy.

3. The Respondent filed Grounds of Opposition dated 12th February 2021 on the following grounds;a.The Application is superfluous, vexatious, incompetent, fatally defective and an abuse of the court process;b.The Application is overtaken by events and does not relate to the Plaint and is thus an abuse of the court's process as it comes up as an afterthought by a litigant bent to defeat and circumvent court orders and obligations by any means necessary;c.The proposed amendment to the Defence and Counter-claim lacks merit and cannot be allowed as there is already a Consent Order which has not been set aside and the Consent Order cannot be set aside through the intended amendments of the Defence and introduction of a Counter-claim after the fact;d.The proposed amendments are a sham, scandalous and do not raise any reasonable issue that can be tried before this Honourable Court;e.The Applicant has not particularized his claim in terms of the amount claimed but is only inviting the court to join him in guessing what he is claiming or he can claim;f.The Application irregularly harbours non-parties to the suit effectively altering the character of the suit;g.The Application lacks merit and ought to be dismissed with costs.

Applicant’s Case 4. The Applicant submitted that whereas the power to grant or refuse an amendment is discretionary, the Court must act judicially in exercise of its discretion within the ambit of the principles of natural justice.

5. The Applicant acknowledged that whereas the application seeking leave to amend is coming late in the day, the proposed amendment would not cause injustice or irreparable loss to the Plaintiff/Respondent nor is it devised to abuse the process of the court or unnecessarily delay justice.

6. In addition, the Applicant argued that the proposed amendments are not inconsistent with the original cause of action but stems from the same transaction and as such the amendments seek to avoid multiplicity of suits between the parties over the same subject matter capable of being conclusively determined by the same court.

7. It was the Applicant’s submission that if the instant Application is not allowed the Applicant would suffer substantial and irreparable loss and the Court would have sanctioned such injustice by the Plaintiff/Respondent.

Respondent’s Case 8. In response it was the Respondent’s submission that the proposed amendments seek to substantially alter the course of the suit all to the Plaintiff's prejudice since the Respondent/Defendant tactfully seeks to avoid abiding by the terms of the Consent Order entered on 19th December, 2019.

9. The prayers in the Draft Counterclaim seek to craftily and irregularly vary the terms of the Consent Order between the parties. Most of the Orders sought in the Counterclaim are spent as the Respondent/Plaintiff returned all the goods belonging to the Defendant/Applicant. The Court should not allow itself to be misled by the Applicant into issuing orders in vain.

10. Further, that the Applicant is a negligent pleader as he squandered his opportunity to raise the counterclaim and the issues therein in the original Defence and he should not be allowed to invoke the provisions of Order 8 Rule 3.

Issues for Determination 11. The Court has carefully considered the Application, Grounds of Opposition and the written submissions by the parties and has framed the following issues for determination;a.Whether there exists a Consent Order between the parties?b.The effect of the said Consent Order to the instant Application?c.Whether the Application is merited?

Analysis 12. The Applicant filed an Application seeking leave to amend the Defence as per the annexed amended Defence and Counter Claim. On the other hand, the Respondent argued that the proposed amendment to the Defence and Counter-claim lacked merit and should not be allowed as there is in existence a Consent Order which has not been set aside

Whether there exists a Consent Order between the parties; The effect of the said Consent Order to the instant Application; 13. The Court has had the chance to peruse the proceedings in the file herein and it is notable that there was a Consent that was recorded by the parties on 19th December 2019. The Coram by Hon.Lady Justice Nzioka states that Mr. Mungai appeared for the 1st Plaintiff and Mr. Kurauka for the 2nd Plaintiff while Ms. Lilande held brief for Mr. Avedi for the Defendant. The recorded consent was adopted as an order of the court.

14. The Consent Order was issued on 16th January 2020 and it stated as follows;It is hereby ordered by consent1. That the amount payable by Defendant to the plaintiff is Kshs. 13,195,986. 002. That the defendant requests payment by instalments to be agreed as by 5th January 2020, when the Defendants will be back.3. That the defendant shall transfer 100 acres of land from L.R No. to be ascertained.4. That the plaintiff be allowed to collect her goods held in Glogan's caste as per the inventory filed in this court in her plaint.5. That parties to submit on the issue of costs.Court further orders6. That application be served for hearing on 18th March 2020. 7.That the application be served and parties to file skeleton submissions thereto before then.

15. There is no indication in the file that the consent herein was set aside, varied or appealed against. Equally, the Applicant has not adduced any evidence to controvert the existence of the said Consent Order.

16. The principles that appertain to the definition of a consent order and the setting aside of the consent order are well established in a legionof cases including Brooke Bond Liebig vs Mallya (1975) EA 266 where Mustafa Ag. VP stated thus;“The compromise agreement was made an order of the court and was thus a consent judgment. It is well settled that a consent judgment can be set aside only in certain circumstances, e.g on grounds of fraud or collusion, that there was no consensus between the parties, public policy or for such reasons as would enable a court to set aside or rescind a contract. In this case the parties and their advocates consented to the compromise in very clear terms; they were certainly aware of all the material facts and there could not have been any mistake or misunderstanding. None of the factors which could give rise to the setting aside of a consent agreement existed.”

17. Similarly, in the case of Flora N. Wasike vs Destimo Wamboko [1988] eKLR Hancox JA cited Setton on Judgments and orders (7th edition) Vol. 1 page 124, and reiterated that;“Any order made in the presence and with the consent of counsel is binding on all parties to the proceedings or action, and those claiming under them… and cannot be varied or discharged unless obtained by fraud or collusion or by an agreement contrary to the policy of the court…; or if the consent was given without sufficient material facts, or in general for a reason which would enable a court set aside an agreement.”

18. None of the circumstances highlighted above have been brought to the attention of the court. The Applicant did not file any application to effectively set aside the consent order and seems to be oblivious of the existence of the consent order.

19. Being that there is a consent order in place, the suit was marked as closed and the only issue that the court was to deal with was the issue of costs which the Court directed the parties to submit on. The matter is concluded and this court cannot consider the Applicant’s Application unless the case is re-opened by the setting aside of the Consent Order herein.

Whether the Applicant’s Application is merited; 20. It goes without saying that the Applicant’s Application has been overtaken by events and this court reiterates that the instant application cannot be used to vary or set aside the terms of the Consent Order due to the fact that the applicant has failed to establish the existence of any of the factors which could give rise to the setting aside of a consent agreement.

Findings and Determination 21. In the light of the foregoing this court makes the following findings and determinations;i.This court finds that the consent order dated 19th December, 2019 is still in existence; and has never been set aside;ii.This court finds the application to be devoid of merit in its entirety and it is hereby dismissed with costs to the Respondent.Orders Accordingly.

DATED, SIGNED AND DELIVERED ELECTRONICALLY AT NAIROBI THIS 8THDAY OF JULY, 2022. HON. A. MSHILAJUDGEIn the presence of;Miss Lilande for the defendant/ApplicantMathenge holding brief for the plaintiff/RespondentJasmin--------------------------Court Assistant