[2017] KEHC 7835 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 273 OF 2006

JOSEPH C. MUSYOKI……………………………………..…APPELLANT

VERSUS

THE ATTORNEY GENERAL……………………...………..RESPONDENT

R U L I N G

1. The Appellant filed a notice of motion dated 26th October, 2015 seeking orders that:

i. This court be pleased to review and or vary the decision of the Deputy Registrar dated 17th December, 2012 computing the interest payable to the appellant from 26th October, 2010 being the date of judgment instead of 29th April,2004 being the date of filing suit in CMCC No. 4525 of 2004.

ii. This court be pleased to set aside the part of the Deputy Registrar’s order dated 17th December, 2012 computing the interest payable to the appellant from 26th October, 2010 being the date of judgment and substitute therewith an order computing interest from 29th April, 2004 being the date of filing suit in CMCC No. 4525 of 2004.

2. The motion is brought under Article 159 (2) (d) of the Constitution of Kenya, sections 1A,1B and 3A of the Civil Procedure Act and Order 45 (1) and Order 51 rule1 of the Civil Procedure Rules. It is premised on the grounds on the body of the application and the supporting affidavit of the appellant. The appellant’s gravamen is that following the judgment in this appeal, the Deputy Registrar while computing the interest payable to the appellant, made calculation from the date of the judgment in the appeal rather than from the date of filing the suit in the lower court. He contended that the decision of the Deputy Registrar has the effect of reviewing the decision of the judge and is thereby an apparent error on the record. That the said erroneous computation was adopted by Hon. Waweru J., and a certificate of order was issued to that effect against the Government on 13th August, 2013. He explained that the delay in filing this motion was occasioned by the change of advocates representing him and delay in reallocation of the court file to another judge.

3. In response thereto the respondent filed a preliminary objection and a replying affidavit sworn by Martin M. Munene who is a state counsel in conduct of this matter on behalf of the respondent. It was contended that this motion is res judicata since the appellant had sought similar orders in an application dated 16th July, 2012. That in the said application, the appellant sought an order to review the decree to reflect his true salary scale together with allowances that were effected by the Government from 1st October, 2006 to December, 2007. That, that application was heard and a ruling delivered to the effect that the appellant was entitled to the progressive upward review and upgrades to his salary since the retrenchment was unlawful. That the court directed that the actual calculations be worked out and confirmed with the parties and the Deputy Registrar and the court would adopt the actual figure calculated by the parties on a date convenient to all. That the parties agreed to be guided by the letter from the Ministry of Education dated 3rd November, 2011 in which the Ministry had re-calculated the salary and allowances arrears payable to the appellant if he were to be reinstated from 1st October, 2000 until his retirement. That the parties appeared before the Deputy Registrar on the 17th December, 2012 and recorded a figure of Ksh.1,836,687. 92 as the amount due to the Applicant as per the calculations agreed on by both parties. He contended that the issue of interest was dealt with in the application dated 16th July, 2012 where the court ordered that the amount payable to the appellant inclusive of interest was KShs. 1,994,170. 32. That in view of the foregoing there is no error apparent on face of the record since the figure was consented to. It was further contended that the appellant seeks a different conclusion from the one reached by the court and the same is tantamount to an appeal which this court cannot sit on its own decision.

4. The preliminary objection was on the following grounds:

i. that the notice of motion is res judicata as it offends the provisions of section 7 of the Civil Procedure Act in that it is seeking similar orders to those sought in a previous application dated 16th July, 2012

ii. that the conditions for setting aside a consent judgment have not been met and therefore the decision of the Deputy Registrar cannot be varied.

iii. That the application has been brought after unreasonable delay.

5. In his further affidavit filed on 25th November, 2015 the appellant denied that this application is res judicata. He stated that the application dated 16th July, 2012 sought a review of the judgment of Hon. Sitati J., while the application herein seeks to review the orders of the Deputy Registrar dated 17th December, 2012. That there was no consensual computation of interest from the date of the judgment.

6. A supplementary affidavit was filed on behalf of the respondent to the effect that the appellant’s advocate signed a discharge voucher for the decretal sum to be released and that the said voucher was in respect to full and final settlement to the appellant’s claim.

7. On the issue of res judicata and consent to compute interest, the appellant in his submissions, reiterated its averments in the affidavits. To support his argument he cited the case of Kasmir Wesonga Ongoma & Another v. Wanga (1987) eKLR, Oyugi Martin v. Oyoo Antony, High Court of Uganda at Gulu Civil Appeal No. 0019 of 2012, Orix Oil (K) Limited v. Paul Kabeu & 2 Others (2014) eKLR among others which I shall consider. The appellant further argued that the figure of KShs. 1,836,687. 92 does not include interest from the date of filing the suit contrary to the expression of section 26 (1) of the Civil Procedure Act which unequivocally provides that interest on a monetary claim ought to be computed from the date of filing suit. It was submitted that the court was mistaken to believe that the figure of KShs. 1,836,687. 92 was inclusive of interest. On delay, the appellant reiterated its averment in the affidavit and added that the said fact was not rebutted. That the respondent has merely mentioned that it will be prejudiced by the delay in filing the motion herein. The appellant cited Richand Velji Shah & 3 others v. Viktar Maina Ngunjiri ELC 359 of 2009 and Mwangi S. Kimeny v. Attorney General & Another (2014) eKLR.

8. The court has considered the motion herein. In my view what is before the court for determination is whether or not there was an error apparent on the face of the record to warrant a review of the decision of the Deputy Registrar dated the 12th December, 2012. The applicant contends that the Deputy Registrar failed to calculate interest from the date of filing of the suit. From the record, the parties herein calculated the amount payable to the applicant and the Deputy Registrar merely recorded the agreement between the parties. The appellant was at the time represented by counsel who did not object to any part of what was recorded. Considering that the Deputy Registrar did not come up with the figures it cannot be said that he made any error. Secondly, considering that the appellant was represented by counsel and he has not alleged that the recording of consent was actuated by fraud or misrepresentation, it cannot be subject for review. See Kenya Commercial Bank Ltd v. Specialised Engineering Co. Ltd (1982) KLR P. 485where it was held that:

“A consent order entered into by counsel is binding on all parties to the proceedings and cannot be set aside or varied unless it is proved that it was obtained by fraud or by an agreement contrary to the Policy of the court or where the consent was given without sufficient material facts or in misapprehension or ignorance of such facts in general for a reason which would enable the court to set aside an agreement.

In the same case the Court further held that:

“An advocate has general authority to compromise on behalf of his client as long as he is acting bona fide and not contrary to express negative direction. In the absence of proof of any express negative direction, the order shall be binding”.

The same legal principle was also enunciated in the case of Brooke Bond Liebig Vs Mallya 1975 E.A. 266 where it was held: -

“A consent judgment may only be set aside for fraud collusion or for any reason which would enable the court to set aside an agreement.”

In the case of Hirani W Kassam (1952) 19EACA 131, the Court of Appeal at Nairobi quoted the following passage from seton on judgments and orders, 7th Edition, Vil. 1 page 124 as follows: -

“Prima facie, any order made in the presence and with the consent of counsel is binding on all parties to the proceedings or action and on 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 consent was given without sufficient material facts, or in misapprehension or in ignorance of material facts, or in general for a reason which would enable the court to set aside an agreement.”

9. The court has also noted that in furtherance to the terms recorded by the parties’ advocates before the Deputy Registrar on the 17th December, 2012, the same parties recorded a consent before Waweru J, on the same terms and only factored in the interest which had risen by then.

The Appellant has not alleged that the consent was entered into without his consent or that it was obtained by fraud.

In the premises aforesaid, this court finds that the application dated 26th October, 2015 has no merits and it is hereby dismissed with costs to the Respondent.

Dated, signed and Delivered at Nairobi this 2nd day of February, 2017.

………………………………

L NJUGUNA

JUDGE

In the presence of

………………………….. for the Appellant.

……………………………… for the Respondent