[2019] KEHC 1247 (KLR)
The court held that the consent order recorded by the parties on 18th April 2018, which deemed the defendant's statement of defence as duly filed and served, necessarily entailed the setting aside of the interlocutory judgment and the admission of the defence to the record. The subsequent ruling of 3rd December 2018...
Source-derived case information.
- Citation
- [2019] KEHC 1247 (KLR)
- Parties
- Plaintiff: Jamarat Apartments Limited; Defendant: County Government of Vihiga
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 3 & 4 of 2017
- Procedural Posture
- Civil Suit / Post Interlocutory Ruling; Pre Trial on Merits
- Outcome
- Applications disposed of; interlocutory judgment set aside; suit to proceed on merits.
- Judges
- DN Musyoka
- Legal Topics
- Setting Aside Judgment, Consent Orders, Interlocutory Judgment, Filing of Defence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jamarat Apartments Limited
Plaintiff
County Government of Vihiga
Defendant
Procedural Posture
Civil Suit / Post Interlocutory Ruling; Pre Trial on Merits
Legal Issues
- 1 Whether the consent order recorded on 18th April 2018 effectively set aside the interlocutory judgment and disposed of the pending applications.
- 2 Whether there remains any live issue for determination following the consent and the court's ruling of 3rd December 2018.
Ratio Decidendi
The court held that the consent order recorded by the parties on 18th April 2018, which deemed the defendant's statement of defence as duly filed and served, necessarily entailed the setting aside of the interlocutory judgment and the admission of the defence to the record. The subsequent ruling of 3rd December 2018 confirmed this position, setting aside the judgment of 13th June 2017 and all consequential orders, and directing that the suit proceed on its merits. As a result, there remained no live issue for further determination regarding the interlocutory applications, and any further submissions on those matters were unnecessary. The parties were advised to proceed to hearing of the...
Court Disposition
Applications disposed of; interlocutory judgment set aside; suit to proceed on merits.
Orders
- The judgment of 13th June 2017 and all consequential orders are set aside.
- The suit shall proceed to be determined on its merits.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
CIVIL SUITS NOS. 3 AND 4 OF 2017
JAMARAT APARTMENTS LIMITED........................................PLAINTIFF
VERSUS
COUNTY GOVERNMENT OF VIHIGA..................................DEFENDANT
RULING
1. It would appear from the record before me that both matters were brought together, although not consolidated. That appears to me to be the case from the record of 18th April 2018 in Kakamega HCCC No. 4 of 2017.
2. I delivered a ruling herein on 3rd December 2018 disposing of the Motions dated 19th March 2018. I concluded, from the consent order recorded on 18th April 2018, that the said Motions had been disposed of by the terms of that consent. The defences that were attached to the affidavits in support of the applications were deemed to be duly on record and served, which effectively meant that the interlocutory judgement had been set aside.
3. The final order that I made in that ruling was in the following terms:
“I shall accordingly set aside the judgement of 13th June 2017 and all consequential orders. The suit shall proceed to be determined on its merits. Costs shall be in the cause. Should any party be dissatisfied with the outcome of these proceedings, there is leave to appeal against the same at the Court of Appeal within twenty-eight (28) days.”
4. As it is there is nothing to be determined following the order of 3rd December 2018, which I have set out above. It is all water under the bridge. Surely the advocates on record should have read the court file before proceeding to file submissions on the matter.
5. Clause 6 of the consent that the parties recorded on 18th April 2018, before Sitati J., sealed the fate of the two applications. It disposed of them finally and completely, leaving nothing else to be agitated, argued or determined. The clause says:
“The applicant’s Statement of Defence dtd 19/03/2018 and filed herein on 06/04/2018 be and is hereby deemed as duly filed and served.”
6. What was the purpose of having it deemed as duly filed and served if not to say that the judgement had been set aside and the said defence had been admitted and was to be deemed as being properly on record? That clause can only go together with a setting aside of the judgement, otherwise it would be useless, superfluous and irrelevant. I do not want to imagine that the parties intended to insert a clause in their consent which had no meaning or effect or purpose.
7. The parties are advised to fix the two matters for the hearing of the main suits, or, otherwise, file appeal against the ruling of 3rd December 2018 at the Court of Appeal.
DELIVERED, DATED AND SIGNED AT KAKAMEGA THIS 11TH DAY OF DECEMBER, 2019.
W. MUSYOKA
JUDGE