[2022] KEHC 2570 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

(Coram: Odunga, J)

HIGH COURT CIVIL CASE NO. 2 OF 2019

(FORMERLY MILIMANI HCCC NO. 391 2017)

BETWEEN

JANET MORAA T/A JANNETTES CATERERS......................................PLAINTIFF

VERSUS

HELMA INTIMATES EPZ LTD............................................................DEFENDANT

RULING

1. These proceedings were instituted by way of a plaint dated 21st September, 2017. According to the Plaintiff, she was contracted by the Defendant to offer staff canteen services for the Defendant’s personnel at the Defendant’s Athi River factory. Pursuant to the said agreement the Plaintiff undertook to set up a kitchen factory and engaged the services of various contractors to undertake renovations of the available space and improvements thereon so as to meet the required standards of food handling services. She then commenced the provision of the said services and for one year she was receiving payments in respect thereof. According to the Plaintiff, as a result of the need to meet the requisite demands, the Plaintiff increased her staff and contracted a number of suppliers.

2. However, the Defendant vide a letter dated 8th September, 2017 sought to unprocedurally terminate the Plaintiff’s services in under 14 days, an action which the Plaintiff contended was humanly impossible considering the investments put in by the Plaintiff and the supplies pending payment.

3. It was contended that this was in violation of the terms of the agreement which provided for at least six months’ notice. The Plaintiff then particularized the loss it stood to suffer in the event that the Defendant proceeded with the said action and sought a declaration that the said service agreement was valid and enforceable; an order restraining the Defendant from terminating the said agreement; an order for specific performance of the said agreement, special and general damages and any other relief deemed fit and just.

4. On 7th June, 2018, the court recorded a consent by which it was ordered that:

(1) The plaintiff would continue offering the Defendant catering services on the latter’s suit premises till 30th November, 2018.

(2) The Plaintiff would be allowed one (1) month from 1st December, 2018 to 31st December, 2018 to remove all the equipment and give notice to her catering staff from the Defendant’s premises.

(3) That all costs associated with the removal of the equipment as well as issuance of the notices/termination of the catering staff contracts would be met by the Plaintiff.

(4) That if the parties so desire, they would freely negotiate and enter into a fresh contract at any time to be properly negotiated and correctly signed before its implementation.

(5) That unless such a fresh contract was entered into, if the plaintiff would not have moved out of the Defendant’s premises together with her staff and equipment by 31st December, 2018, the Defendant would be at liberty to evict the Plaintiff with the help of police officers.

(6) That this case was marked as settled with each party bearing own costs.

5. By a Notice of Motion dated 14th June, 2021, the subject of this ruling, the Plaintiff/Applicant now seeks that this Court interprets the said consent judgement as well as its ruling dated on 25th September, 2029 as to whether the consent included the permanent fixtures erected by the Applicant on the Respondent’s suit property and to specify whether the said consent can prevent the Plaintiff from claiming separately for the permanent fixtures erected by the Applicant on the Respondent’s suit property.

6. According to the Applicant, the said consent judgement and ruling have caused extreme confusion and ambiguity since the judgement touched on only the movable equipment and not the permanent fixtures yet the Applicant heavily invested in the said kitchen improvements which amount was to be refunded by the Defendant based on pre-contract negotiations which were the basis upon which the said improvements were undertaken. Though the consent only touched on movable equipment it is contended that the Defendant has interpreted the same to cover permanent fixtures, renovations and general improvements. Having known that such permanent fixtures cannot be collected nor removed from the suit property as per the consent judgement, the Defendant has continued enjoying the benefits of the fixtures on one hand while inviting the Applicant to collect the permanent fixtures.

7. It was on that basis that this application was made.

8. In responding to the application, the Defendant averred that the parties herein took time and directly as well as through counsel on record negotiated an out of Court settlement and the agreed terms were outlined in the said consent and they appeared before the Court on 7th June, 2018 when the said consent was filed and it was confirmed as an order of the Court. Due to the poor catering services offered by the Plaintiff to the Defendant’s staff, the Defendant opted not to renew the contract and instead contracted another caterer by the name of Bonvivant Professional Caterers Ltd who moved in immediately and begun offering the said services. The Plaintiff, it was averred, was given the opportunity to remove her equipment and give ample notice to her employees. However, despite being notified by the Defendant to remove her equipment, the Plaintiff failed to do so but instead sought to set aside the consent judgement which application was dismissed, a decision which the Plaintiff has sought to challenge by filing a Notice of Appeal. However, instead of pursuing the appeal, the Plaintiff filed Mavoko CMCC No. 21 of 2019.

9. According to the Respondent, the Applicant cannot purport that she does not understand and seek the interpretation of the consent, 4 years down the line after enjoying the same.

10. There was another vide a supplementary affidavit, it was averred that due to the need to provide efficient services, it was agreed by both parties that the facility needed to be refurbished and as a result the Applicant was asked to list all the changes and materials needed to facilitate the reconstruction. However, the Applicant informed the Respondent that the former would not be able to meet the costs of setting up the facility. It was therefore verbally agreed that the Applicant would buy the necessary equipment and modify the kitchen from her pockets and that the Respondent would reimburse her all the costs incurred in the renovation. Accordingly, the Applicant undertook all the said renovations to the satisfaction of the Respondent but the said reimbursement was not forthcoming.

Determinations

11. I have considered the application, the supporting as well as the replying affidavit.

12. On 25th day of September, 2019, this Court expressed itself inter alia as hereunder:

“In this case the said consent judgement was adopted by the Court on 7th June, 2018. One of its terms was to grant the Plaintiff permission to continue offering the Defendant catering services on the latter’s suit premises till 30th November, 2018 after which the Plaintiff would have a grace period of one (1) month from 1st December, 2018 to 31st December, 2018 to remove all the equipment and give notice to her catering staff from the Defendant’s premises. It is therefore clear that the Plaintiff was afforded nearly 5 months of continuing with her business in the Defendant’s premises. It was not until the lapse of the said 5 months that the Plaintiff made the present application. The plaintiff has not contended that she was unaware of the said consent and no explanation has been offered by her why she waited for five months to challenge the said consent…In this case, it is clear that the Plaintiff enjoyed fully the part of the consent that was beneficial to her before seeking to challenge the consent. Whereas, the Plaintiff now claims that her interests were not considered in the consent and that the consent was not beneficial to her at all, it is clear that the part of the consent that permitted her to carry on the business for 5 months was to her benefit…It is therefore clear that the conduct of the applicant subsequent to the entry of a consent is a factor to be considered in determining whether or not the consent was recorded with his/her blessings. To my mind, a party who waits for five months after the recording of a consent while enjoying the part favourable to him/her as the Plaintiff in this case did, only has himself/herself to blame if after exhausting that part he/she realises that the remaining part is not as juicy as the part he/she enjoyed.”

13. In this application, if I understand the Applicant correctly, it is contended that the consent judgement only dealt with the movable equipment and not the permanent fixtures which were on the premises and which had been installed by the Applicant based on a verbal contract between the Applicant and the Respondent. According to the Applicant, those fixtures can neither be removed nor renovated. It was however agreed that the Respondent would bear the expenses incurred by the Applicant in installing the same.

14. The question that this Court has to deal with is whether the Court may interpret a consent judgement in order to incorporate the contracts which were entered into by the parties in the course of their contractual relationship before the consent was entered into. In my view a consent judgement or order, being contractual in nature may be entered into to resolve not only the issues the subject of the suit but also the other issues touching on the relationship between the parties. Where the consent judgement touches on other issues which strictly speaking were not the subject of the suit, a party cannot later on come to court to claim that the consent ought not to have touched such issues. It may well be that the consideration for entering into a consent judgement was that such other issues would also be determined. However, it is not for the Court to inquire into the same as adequacy of consideration is never an issue for determination by the Court.

15. In order for this Court to determine the alleged agreement between the parties herein, this Court would, as a necessity, have to determine the validity of the said verbal agreement. That is not a matter that can be determined by simply interpreting the consent judgement since the very existence of the said agreement is disputed. Again the question as to whether the equipment referred to in the consent included permanent fixtures or not is not one that this Court can determined by way of interpretation of the consent as that would require an inquiry as to what the intention of the parties was at the time they entered into the said consent judgement. This Court was not involved in the negotiations leading to the recording of the consent judgement and hence cannot determine that intention.

16. In the premises, I find this application unmerited. The same fails and is dismissed but as the Respondent failed to comply with the directions to furnish the soft copies in word format, there will be no order as to costs.

15. It is so ordered.

RULING READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 9TH DAY OF FEBRUARY, 2022.

G. V. ODUNGA

JUDGE

IN THE PRESENCE OF:

MS WAGASA FOR THE DEFENDANT/RESPONDENT

MR MANWA FOR THE PLAINTIFF/RESPONDENT

CA SUSAN