[2011] KEHC 3222 (KLR)
The court held that the parties had voluntarily entered into a consent regarding the mode of argument, including determination by affidavit evidence and written submissions, with provision for oral highlighting. The plaintiffs did not make a substantive application to set aside or vary the consent, nor did they...
Source-derived case information.
- Citation
- [2011] KEHC 3222 (KLR)
- Parties
- Plaintiff: Margaret Walegwa; Plaintiff: Benson Lusweti Wanyonyi; Plaintiff: Paul Kizumbi & 155 Others; Defendant: Changamwe Housing Scheme Limited; Defendant: Trust Bank Limited (In Liquidation)
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 57 of 2010
- Procedural Posture
- Civil Application / Ruling on Chamber Summons Seeking Stay of Judgment and Related Orders
- Outcome
- application dismissed with costs to the defendants; parties to be given a date to highlight written submissions orally as per consent
- Judges
- JV Juma
- Legal Topics
- Stay of Judgment, Consent Orders, Affidavit Evidence, Leave to File Submissions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Margaret Walegwa
Plaintiff
Benson Lusweti Wanyonyi
Plaintiff
Paul Kizumbi & 155 Others
Plaintiff
Changamwe Housing Scheme Limited
Defendant
Trust Bank Limited (In Liquidation)
Defendant
Procedural Posture
Civil Application / Ruling on Chamber Summons Seeking Stay of Judgment and Related Orders
Legal Issues
- 1 Whether the plaintiffs are entitled to a stay of judgment pending determination of their application.
- 2 Whether the plaintiffs can seek to vary or set aside a consent order without a substantive application.
- 3 Whether the plaintiffs are entitled to examine the deponents of the defendants' affidavits on oath.
Ratio Decidendi
The court held that the parties had voluntarily entered into a consent regarding the mode of argument, including determination by affidavit evidence and written submissions, with provision for oral highlighting. The plaintiffs did not make a substantive application to set aside or vary the consent, nor did they utilize the opportunity previously granted to respond to the defendants' affidavits. Instead, they filed the present application, which the court found to be without merit. The court emphasized that parties are bound by their consent and the agreed procedure, and that the application amounted to an unjustified attempt to reopen closed proceedings. However, the court noted that oral...
Court Disposition
application dismissed with costs to the defendants; parties to be given a date to highlight written submissions orally as per consent
Orders
- The plaintiffs' chamber summons dated 3rd November 2010 is dismissed with costs to the defendants.
- Parties to be given a date to appear and highlight their written submissions before the court.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL CASE NO. 57 OF 2010 (O.S.)
IN THE MATTER OF:REGISTRATION OF TITLES ACT (CAP 281 LAWS OF KENYA) AND THE LIMITATION OF ACTIONS
ACT (CAP 22, LAWS OF KENYA)
AND
IN THE MATTER OF:THE CIVIL PROCEDURE ACT AND RULES ENACTED THERETO
IN THE MATTER OF:LAND REFERENCE NO. MN/V/15 WITHIN MOMBASA MUNICIPALITY, MOMBASA DISTRICT
BETWEEN
1. MARGARET WALEGWA............................................................................................PLAINTIFFS
2. BENSON LUSWETI WANYONYI.............................................................................PLAINTIFFS
3. PAUL KIZUMBI & 155 OTHERS.............................................................................PLAINTIFFS
AND
1. CHANGAMWE HOUSING SCHEME LIMITED...............................................1ST DEFENDANT
2. TRUST BANK LIMITED (IN LIQUIDATION) .................................................2ND DEFENDANT
RULING
By this Chamber Summons dated 3rd November 2010 brought under Certificate of Urgency the Plaintiffs through their advocate Ms. Chesaro seek the following orders inter alia that:-
“(2)That the Judgement slated to be read on 5th November 2010 be stayed pending the hearing and determination of this application.
(3)That Deponents of 1st and 2nd Defendants replying affidavits dated 16th September 2010 and 1st April 2010 be examined on oath.
(4)The plaintiffs be granted leave to file further submissions out of time or as this Honourable court may direct.
(5)Costs be in the cause”
Mr. Oyatsi counsel for the Defendants opposed the application. The parties did by way of a consent dated 3rd May 2010 agree that the case be determined by way of affidavit evidence. The parties further set out an elaborate time table for exchange of such affidavits and consented further that the court would receive oral highlighting of those written submissions. All that was agreed upon in the consent was done (except for the oral highlighting) and the judgement was reserved for 5th November 2010. Before that judgement could be read as scheduled the Plaintiffs filed this present application. I do agree with counsel for the Defendants that at that point this matter was effectively closed. The parties voluntarily entered into a consent regarding the mode of argument of the case and where a party wishes to set aside or vary that consent (as the Plaintiff now seeks to do) then a substantive application to so vary and/or set aside the consent should be made. This was not done in this case. Further Ms. Chesaro alleges that the Defendant did not come out clear in his replying affidavit. The court did on 27th September 2010 allow to the Plaintiffs an opportunity to respond to these replying affidavits, which Ms. Chesaro claimed had raised new issues. Any challenge to the replying affidavits ought to have raised in those further affidavits. Instead of proceeding as directed by the court the Plaintiff chose to file this present application which in my view is not merited. In as much as this court does not wish to shut out any party from being heard the court will not allow the Plaintiffs to go off on a tangent pursuing a fishing expedition by calling the Defendants to testify on oath. No application has been made to seek further and better particulars from the Defendants. In my view the present application has no merit, and is displaced and I do dismiss the same with costs to the Defendants. However I do note that as per the consent, which provided for the oral highlighting of submissions this was not done. As such this court will give the parties a date to appear and highlight their written submissions before court.
It is so ordered.
Dated and Delivered in Mombasa this 8th day of April 2011.
M. ODERO
JUDGE
In the presence of:-
Mr. Buya holding brief for Mr. Guram for 1st Defendant
No appearance for the Applicants