[2017] KEELC 786 (KLR)
The court adopted the consent order as its own, recognizing that the parties had freely and mutually agreed to settle the plaintiff's loan liability to the 1st defendant at Kshs.8,000,000, with liberty for either party to sell the charged properties to offset the debt. The consent order was found to be lawful, clear...
Source-derived case information.
- Citation
- [2017] KEELC 786 (KLR)
- Parties
- Plaintiff: Miriti Mbui Muthara; Defendant: Sidian Bank Limited; Defendant: Anthony Lewis Kimathi t/a Lewton Ventures; Defendant: Lewton Ventures; Defendant: Regent Auctioneers
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 127 of 2017
- Procedural Posture
- Land and Property Suit / Consent Order Ruling
- Outcome
- Consent order adopted; suit marked as settled subject to compliance with consent terms.
- Judges
- FM Njoroge
- Legal Topics
- Loan Settlement, Charge and Mortgage, Property Sale for Debt Repayment, Consent Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Miriti Mbui Muthara
Plaintiff
Sidian Bank Limited
Defendant
Anthony Lewis Kimathi t/a Lewton Ventures
Defendant
Lewton Ventures
Defendant
Regent Auctioneers
Defendant
Procedural Posture
Land and Property Suit / Consent Order Ruling
Legal Issues
- 1 Whether the consent order settling the plaintiff's loan liability with the 1st defendant should be adopted as an order of the court.
- 2 Whether the parties are at liberty to sell the charged properties to offset the agreed loan balance.
- 3 Whether the consent order adequately settles the dispute between the parties.
Ratio Decidendi
The court adopted the consent order as its own, recognizing that the parties had freely and mutually agreed to settle the plaintiff's loan liability to the 1st defendant at Kshs.8,000,000, with liberty for either party to sell the charged properties to offset the debt. The consent order was found to be lawful, clear in its terms, and not contrary to public policy. The court's fundamental reasoning was that a consent order, once entered into by parties with capacity and without evidence of fraud or coercion, is binding and enforceable as a judgment of the court. The court therefore marked the plaintiff's application as settled, adopted the consent as an order, and issued directions for...
Court Disposition
Consent order adopted; suit marked as settled subject to compliance with consent terms.
Orders
- The Notice of Motion by the Plaintiff dated 27th May, 2016 is marked as settled.
- The loan amount to be repaid to the 1st defendant by the plaintiff is agreed at Kshs.8,000,000.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC CASE NO 127 OF 2017
FORMERLY MERU ELC CASE NO. 62 OF 2016
MIRITI MBUI MUTHARA.............................PLAINTIFF
VERSUS
SIDIAN BANK LIMITED...................1ST DEFENDANT
ANTHONY LEWIS KIMATHI T/A.....2ND DEFENDANT
LEWTON VENTURES.....................3RD DEFENDANT
REGENT AUCTIONEERS...............4TH DEFENDANT
RULING
1. The parties in this suit proffered a consent dated 5th December, 2017 which they asked the court to adopt as its order.
2. The consent is in the following terms:
CONSENT ORDER
BY CONSENT: It is hereby AGREED and Ordered as follows:
1. That the Notice of Motion by the Plaintiff dated 27th May, 2016 be and is hereby marked as settled.
2. That the loan amounts to be repaid to the 1st defendant by the plaintiff has been mutually agreed at Kshs.8,000,000/=.
3. That the plaintiff to be at liberty to settle the agreed sum of Kshs.8,000,000/= in full and final settlement of his liabilities with the 1st defendant.
4. That the plaintiff be and is hereby allowed to source for a buyer for either or all his properties; MAGUMONI/THUITA/777, MAGUMONI/ITUGURURU/427 & MAGUMONI/ITUGURURU/2034 so as to offset the agreed loan balances of Kshs.8,000,000/=
5. That the 1st defendant is also at liberty to source for a buyer for the said properties; MAGUMONI/THUITA/777, MAGUMONI/ITUGURURU/427 & MAGUMONI/ITUGURURU/2034 so as to offset the agreed loan balances of Kshs.8,000,000/=.
6. That this consent order to be in force for a period of 6 months from the date hereof after which the loan facility owed by the plaintiff shall revert to earning interest at the prevailing commercial rates.
7. That this suit to be mentioned within the next 60 days to confirm compliance with these orders.
DATED THIS 5TH DAY OF DECEMBER, 2017
SIGNED: BASILIO GITONGA, MURIITHI & ASSOCIATES,
ADVOCATES FOR THE PLAINTIFF.
P. M. MUCHIRA & CO
ADVOCATES FOR THE 1ST & 3RD DEFENDANTS
3. The consent is adopted as an order of this court.
4. Parties to come to court for directions on 27. 2.2018.
5. It is so ordered.
Delivered in open court at Chuka this 5th day of December, 2017 in the presence of:
CA: Ndegwa
Mark Muriithi for the plaintiff
Rurige for 1st and 3rd defendants
P.M. NJOROGE
JUDGE