[2022] KEHC 9910 (KLR)

Kanyi & another v Mudimba & another ((Suing as the personal representatives of the estate of Godfrey Oliko Wesonga)) (Miscellaneous Civil Application E053 & E409 of 2021 (Consolidated)) [2022] KEHC 9910 (KLR) (Civ) (1 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9910 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Miscellaneous Civil Application E053 & E409 of 2021 (Consolidated)

CW Meoli, J

July 1, 2022

Between

Patrick Gichini Kanyi

1st Applicant

Arthur Chege

2nd Applicant

and

Lillian Akoth Mudimba

1st Respondent

Bernard Java Oliko

2nd Respondent

(Suing as the personal representatives of the estate of Godfrey Oliko Wesonga)

Ruling

1. The events leading up to the present motion are as follows. Patrick Gichini Kanyi and Arthur Chege (hereafter the 1st & 2nd Applicant/Applicants) moved the court by an application dated 9th January 2021 in Nairobi High Court Misc. Civil Application No. E053 of 2021 seeking leave to file their appeal out of time and an order to stay pending hearing and determination of the appeal of further proceedings in Nairobi Milimani CMCC No. 4136 of 2015 and in particular execution of the judgment delivered on 9th December 2019. On 5th May 2021 the foregoing motion was compromised by consent of the parties in the following terms inter alia that the motion be allowed subject to the Applicants making certain payments on the decree to the Respondents, depositing the balance sum into an account and filing an appeal and record of appeal in 45 days in default of which execution would proceed.

2. The Applicants thereafter filed a motion in Nairobi High Court Misc. Civil Application No. E409 of 2021 dated 20th August 2021 primarily seeking that setting aside of the consent recorded by parties on 5th May 2021 in Nairobi High Court Misc. Civil Application No. E053 of 2021 and all consequential orders thereto and reinstatement of the Applicants’ motion in Nairobi High Court Misc. Civil Application No. E053 of 2021 dated 9th January 2021. The latter motion is expressed to be brought under Section 3, 3A, 63(e) & 80 of the Civil Procedure Act, Order 22 Rules 22(1), Order 45 Rule 1 & 2 and Order 51 Rule 1 of the Civil Procedure Rules.

3. The grounds on the face of the motion are amplified in two supporting affidavits sworn by Mandela Chege counsel on record for the Applicants instructed by Directline Assurance Co. Ltd under the doctrine of subrogation, and Kevin Ngure a senior claims manager at Directline Assurance Co. Ltd.

4. Counsel deposes concerning the consent recorded on 5th May 2021 that the Applicants had subsequently discovered that the terms of the consent order with regard to the period of 45 days was contrary to their intention; that counsel had at the time of the consent perceived the period of forty five (45) days to be the time within which the Applicants were to pay half the decretal sum, to deposit the other half and to file the memorandum of appeal, but not to include the time within to file the record of appeal. He further deposes that upon realizing the error, he had contacted counsel for Lillian Akoth Mudimba and Bernard Javan Oliko (hereafter the Respondents) in a bid to vary the terms of the consent, but his request was rejected; that his instructing clients are likely to suffer for an unfortunate error on his part; and that the error is sufficient to vitiate the agreement between parties. In conclusion he asserts that the Applicants have an arguable appeal and it is only just that they be afforded an opportunity to do prosecute the same.

5. Kevin Ngure on his part deposes that he is aware of the consent order recorded on 5th May 2021 and that the said order was erroneously recorded by counsel on record. He asserts Directline Assurance Co. Ltd is willing to comply with the consent order save for the clause requiring the record of appeal to be filed within 45 days.

6. The Respondents oppose the motion through a replying affidavit deposed by Geoffrey Mulanya, counsel on record for the Respondents. He asserts that the present motion is frivolous, vexatious, incompetent, bad in law, made in bad faith and premised on falsehoods. That the motion is a classic case of abuse of the court process on account of the Applicants’ failure to disclose the existence of Nairobi High Court Misc. Civil Application No. E053 of 2021. He asserts that the Applicants’ counsel never contacted him regarding the issue of the consent order and to the contrary, it is he who contacted the Applicants’ counsel upon realizing their default on the terms of the consent order and that, prior to the contacting the Applicants’ counsel he wrote the said counsel a letter on 20th May 2021 restating the terms of the consent, which letter was ignored.

7. He further dismisses the Applicants counsel’s allegation that he believed the period of 45 days in the consent was for the purposes of filling a memorandum of appeal and not the record of appeal as false ; that it was the Applicants’ counsel who had initiated the negotiations on the consent order and willingly recorded the consent; and that it is untrue that he, as the Respondents’ counsel rushed and misled the Applicants’ counsel to record the consent; and that the Applicants are not ready to pay the decretal sum and instead want to engage the Respondents in endless negotiations.

8. Counsel goes on to depose that the motion is prejudicial to the Respondents as the matter has been pending in court since 2012 and that the deceased’s daughter requires funds from the decretal sum to further her education; that the Applicants have not explained their failure to deposit the security and that if that condition had been complied with, he would have been amenable to varying the period within which to file the record of appeal. In conclusion he asserts the beneficiaries of the estate of the deceased are entitled to the decretal sum and thus it is in the interest of justice that the motion be dismissed.

9. On 13th October 2021 directions were taken before this court to consolidate the two causes and Nairobi High Court Misc. Civil Application No. E053 of 2021 appointed as the lead file.

10. The motion was canvassed by way of written submissions. The Applicants’ counsel reiterated the contents of his affidavit and stated that it is not possible to file a record of appeal within 45 days; that the Respondents had evinced their intention to execute the decree, which course would greatly prejudice the Applicants; that it is trite law that the errors of counsel should not prejudice a client; and that it is in the interest of justice that the motion be granted. Citing the case of Flora N. wasike v Destimo Wamboko[1988] eKLR he submitted that the court ought to exercise its discretion in the interest of justice to set aside the same in light of his misapprehension of the consent order.

11. Counsel for the Respondent addressed the court as follows. Firstly, on the question whether the Applicants had met the threshold to set aside the consent order. He relied on the decisions in Board of Trustees National Social Security Fund v Michael Mwalo [2015] eKLR and Flora N. Wasike (supra) to submit that a consent judgment or order has a contractual effect and can only be set aside on specific grounds, and that the present motion does not meet the criteria in the authorities. Reiterating the circumstances in which the consent was recorded, he dismissed as false and unsupported the Applicants’ assertions that it was erroneously recorded under a misapprehension.

12. Secondly, counsel cited the decision in Brooke Bond Liebig (T) Limited v Mallya [1975] E.A to argue that a consent 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 collusion or by agreement contrary to the policy of the court. Relying on the provisions of Section 107 and 112 of the Evidence Act he asserted that the Applicants had failed to prove allegations made in support of the application. In his view, the motion is res judicata and ought to be dismissed with costs.

13. The court has considered the history of this matter as set out in the first part of this ruling, and the rival affidavit material and submissions by the respective parties. The fact that the parties herein entered into a consent order on 5th May 2021 in compromise of the motion dated January 9, 2021 is not in dispute, and all that the Applicants are disputing is the term concerning the time frame given for compliance with the condition with respect to the filing the record of appeal. The court must determine whether the Defendant has established grounds for the setting aside or variation of the consent.

14. The terms of the consent recorded were that:“a).Prayer (2) (seeking stay of execution) is allowed so that the Applicants file an appeal as well as ROA (record of appeal) within 45 days;b).Subject to the Applicants paying half the decretal sum of Kshs. 1,083,869/- to the Respondents’ advocate and depositing the balance of the decretal sum (equal sum) in the form of a bank guarantee into court within 45 days.c).In default execution to issue.”

15. The Defendant’s motion is expressed to be brought inter alia under Order 45 rule 1 of the Civil Procedure Rules which provides that:“Any person considering himself aggrieved—(a)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay”.

16. In the celebrated case of Flora N. Wasike (supra) the Court of Appeal (per Hancox JA) stated that:“It is now settled law that a consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside, or if certain conditions remain to be fulfilled, which are not carried out: see the decision of this Court in JM Mwakio v Kenya Commercial Bank Ltd. Civil Appeals 28 of 1982 and 69 of 1983. In Purcell v F. C. Trigell Ltd [1970] 2 ACCER671, Winn LJ said at 676:“It seems to me that, if a consent order is to be set aside on grounds which justify the setting aside of a contract entered into with knowledge of the material matters by legally competent persons, and I see no suggestion here that any matter that occurred would justify the setting aside of rectification of this order looked at as a contract…

17. The learned Judge continued to state that:“It seems that the position is exactly the same in East Africa. It was set out by Windham J, as he then was, and approved by the Court of Appeal for East Africa, in Hirani v Kassam [192] 19 EACA 131 at 134 as follows:“The mode of paying the debt, is part of the consent judgment. That being so, the court cannot interfere with it except in such circumstances as would afford good ground for varying or rescinding a contract between the parties. No such ground is alleged here. The position is clearly set out in Setton on Judgments and Orders (7th Edn) Vol. 1 p. 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 the consent was given without sufficient material facts, or in general for a reason which would enable the court to set aside an agreement.”See also Brook Bond Liebig (T) Ltd v Mallya (1975) EA 266.

18. The latter passage was also followed by the court in Kenya Commercial Bank Ltd v Specialized Engineering Co. Ltd where the court held that:“..[A]fter the commencement of an action, the solicitor for a party has an implied general authority to compromise and settle the action and the party cannot avail himself of any limitation by him of the implied general authority to his solicitor, unless the limitation has been brought to the notice of the other aside.”

19. Both the courts in the Brook Bond Liebig case and the above case refused to set aside the consent order. On an appeal in respect of the Kenya Commercial Bank Ltd. case, the Court of Appeal held that the advocate had both the implied and ostensible general authority to bind the appellant client “in effecting the compromise”. The court affirmed the judgment of the High Court and dismissed the appeal.

20. Both the advocate and the deponent to the client’s affidavit in support of the motion assert that the intentions of the Applicants were not to consent to a limited period of 45 days for filing the record of appeal in addition to the memorandum of appeal, and that the term to that effect was agreed to in error. However, no evidence of the client’s instructions in that regard or notice thereof to the Respondents was tendered; nor does the advocate explain his alleged error or misapprehension of the term recorded in his presence and with his consent. Applying the principles in Kenya Commercial Bank (supra) to the facts of this case, it is beyond dispute that the Applicants’ advocate had the implied and ostensible general authority to bind the Applicants in compromising the action in terms of the consent. There is no evidence whatsoever that the advocate’s authority was limited in any way or that any contrary instructions had been given by the Applicants to the said advocate regarding the disputed term.

21. The Applicants’ advocate alludes to being “very elated” at the prospect of a consent order albeit rushed, at the time, but he falls short of citing any conduct on the part of the Respondents’ advocate that would amount to fraud, collusion, or misrepresentation of material facts. What makes the Applicants’ claims more unbelievable is the fact that despite being served with the Respondents’ letter dated 20th May 2021 on 21st May 2021 (annexure GM1 to Replying affidavit) which clearly spelt out the terms of the consent, it was not until 20th August 2021 that the Applicants approached the court with the present motion under certificate of urgency. And inexplicably, the motion was filed in a new cause (Misc. Appln. No.409 of 2021). In his affidavit supporting the motion, counsel claimed that his clerk had only “recently” obtained the terms of the consent. The deposition cannot be true as the Respondents’ letter GM1 bears a duly stamped acknowledgment of receipt thereof on 21st May 2021 by the firm of Kimondo Gachoka & Co. Advocates.

22. As of the date of hearing of the motion, the Applicants had not complied with any of the undisputed terms of the consent regarding partial payment and deposit of a bank guarantee as security for the balance of the decretal sums even as a sign of good faith. Upon considering all these matters, the Court is of the view that the present motion is not only devoid of merit but is also an afterthought. Consequently, the motion dated 20th August 2021 is hereby dismissed with costs to the Respondents.

DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 1ST DAY OF JULY 2022C.MEOLIJUDGEIn the presence of:For the Applicants: N/AFor the Respondents: Ms. Moraa h/b for Mr. MulanyaC/A: Carol