[2003] KEHC 659 (KLR)
The court found that the compromise of the suit on behalf of the minor was entered into without the mandatory leave of the court as required by Order 31 Rule 7(b) of the Civil Procedure Rules. The affidavit in support of the application for approval of settlement was sworn by a person not party to the proceedings,...
Source-derived case information.
- Citation
- [2003] KEHC 659 (KLR)
- Parties
- Applicant: John N. Nyotu; Respondent: Mukeu Estate
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 344 of 1989
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Consent Order
- Outcome
- Application to set aside consent order allowed; consent order and letter declared null and void; draft decree approved; costs apportioned.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Compromise of Suit, Minor Suing by Next Friend, Court Leave Requirement, Costs and Interest Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John N. Nyotu
Applicant
Mukeu Estate
Respondent
Procedural Posture
Civil Case / Ruling on Application to Set Aside Consent Order
Legal Issues
- 1 Whether a compromise entered on behalf of a minor without leave of the court is valid.
- 2 Whether the consent order dated 12th June, 1998 should be set aside for lack of court approval.
- 3 Whether costs and interest were properly addressed in the compromise.
Ratio Decidendi
The court found that the compromise of the suit on behalf of the minor was entered into without the mandatory leave of the court as required by Order 31 Rule 7(b) of the Civil Procedure Rules. The affidavit in support of the application for approval of settlement was sworn by a person not party to the proceedings, and the interests of the minor were not adequately protected. The consent letter dated 20th May, 1997, and the resulting order of 12th June, 1998, were therefore null and void ab initio. The court held that strict compliance with procedural requirements is necessary in cases involving minors, and any compromise without court approval cannot stand. The draft decree annexed to the...
Court Disposition
Application to set aside consent order allowed; consent order and letter declared null and void; draft decree approved; costs apportioned.
Orders
- The consent letter dated 20th May, 1997 is declared null and void ab initio.
- The order of 12th June, 1998 is vacated.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 344 OF 1989
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 344 OF 1989
JOHN N. NYOTU…………………………………………APPLICANT
VERSUS
MUKEU ESTATE………………………………………….RESPONDENT
RULING
The proceedings herein involve a minor John Ngigi Nyotu whose next friend is his mother Mary Wanjiku.
By an application filed on 31st March, 1998. Counsel sought to compromise the suit. An order to that effect was made on 12th June, 1998. That is the order sought to be set aside by this application. The authority of counsel who compromised the claim is now being challenged.
In the order of 12th June, 1998, the plaintiff was awarded Kshs.1. 5 million inclusive of general damages, special damages, costs and interest. However in the application giving rise to the said order, issues of costs and interest were not canvassed.
Order 31 Rule 7(b) of The Civil Procedure Rules is mandatory. Before a compromise can be entered into on behalf of a minor, leave of the court has to be given. In the absence of that leave the court did not waive costs and interest. With respect I agree because that indeed was the effect of the order of 12th June, 1998.
The affidavit in support of the application for approval of settlement was sworn by one Johnson Nyotu Ngigi, the husband of the next friend. The husband was not a party to the proceedings.
It transpired later that, by a letter dated 20th May, 1997, counsel then appearing for the parties had agreed that he suit be marked as settled with no orders a to costs. The letter was not brought to the court’s attention when the application for compromise was heard. Indeed the said letter was not filed until 25th February, 2000. Whatever the case, even if the said letter were filed in item and alongside the said application the order proposed would still not hold for lack of leave of the court.
In addition, strict compliance was not enforced as the sum involved was paid directly to counsel for the Plaintiff with adverse consequences. I believe, both parties to a suit are bound by the orders of the court and contravention herein cannot be attributed to the counsel for the Plaintiff and exonerate that for the defendant. It is clear the interests of the minor were not taken into account.
I note the issues raised by the learned counsel for the defendant and believe the same have been sufficiently answered by the learned counsel for the Plaintiff.
I find that the consent letter dated 20th May, 1997 was null and void ab initio. The order of 12th June, 1998 must also be vacated. I now approve the draft decree annexed to the supplementary affidavit.
On costs of this application the defendants shall pay half the costs while the other half shall be paid by the then counsel for the Plaintiffs.
Orders accordingly.
Dated and delivered at Nairobi this 10th day of March 2003.
MBOGHOLI MSAGHA
JUDGE