[2020] KEHC 8464 (KLR)
The court found that the appellant failed to demonstrate sufficient grounds for setting aside the consent order, as he did not provide evidence of fraud, mistake, or misrepresentation. Additionally, the appellant should have first approached the court that recorded the consent before seeking relief from the High...
Source-derived case information.
- Citation
- [2020] KEHC 8464 (KLR)
- Parties
- Appellant: Nahashon Mati Manyera; Respondent: Rael Kananu Kobia
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 168 of 2019
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay and to Set Aside Consent Order
- Outcome
- application dismissed
- Legal Topics
- Consent Judgment, Stay of Execution, Setting Aside Orders, Burial Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nahashon Mati Manyera
Appellant
Rael Kananu Kobia
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay and to Set Aside Consent Order
Legal Issues
- 1 Whether the consent judgment and decree in Maua CMCC No. 167 of 2019 should be stayed and/or set aside.
- 2 Whether the appellant had authority or gave instructions for the consent to be entered.
- 3 Whether the High Court is the proper forum to set aside the consent order before approaching the court that recorded it.
Ratio Decidendi
The court found that the appellant failed to demonstrate sufficient grounds for setting aside the consent order, as he did not provide evidence of fraud, mistake, or misrepresentation. Additionally, the appellant should have first approached the court that recorded the consent before seeking relief from the High Court. The court also noted that the claim regarding clan elders' decision was not raised in the lower court and that the evidence on record, including the affidavit of the Assistant Chief, established that Rael Kananu Kobia was the only known wife of the deceased. Consequently, the application for stay and to set aside the consent order lacked merit and was dismissed.
Court Disposition
application dismissed
Orders
- The appellant is ordered to produce the body of the deceased for burial as per the order of the court made on 9.12.2019 within 7 days of this ruling.
- Failure to comply will result in the appellant being cited for contempt of court order.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
CIVIL APPEAL CASE NO. 168 OF 2019
NAHASHON MATI MANYERA....................................APPELLANT
VS
RAEL KANANU KOBIA..............................................RESPONDENT
(Being an Appeal against the Consent Judgement and decree in Maua CMCC of No.167 of 2019 entered by Honourable C.K. Obara PM on 16th December 2019)
RULING
The Appellant herein moved the court by an application dated 30th December 2019 seeking that the court issues an order for stay of execution of the consent judgment and decree in Maua CMCC No. 169 of 2019 pending hearing and determination of the appeal.
The application is based on grounds on the face of the application and affidavit of Nahashon Mati Manyera who said that he didn’t give instructions to his advocate to record consent in Maua CMCC No 167 of 2019 and he was not taken through the terms of the consent recorded and that his advocate negated his attempts to present his case at the Lower court but she was disregarded. He said the eldrs of the clan from which the deceased hailed had passed a verdict that the deceased be buried by the 1st wife for whom he had filed the suit in the Lower court.
This application was opposed by the Replying Affidavit of Rael Kananu Kobia sworn on 6th January 2020 and the Replying Affidavit of Peter Thuranira Murungi sworn on 7th January 2020.
Having considered the application the grounds and averments in the supporting affidavit as well as the averments in the Replying Affidavits. I do find that the application for stay and to set aside consent order has no merit. The applicant has not satisfied the court that the consent order should be set aside and even if it is assumed he had satisfied the grounds upon which consent orders are to be set aside he ought to have approached the court which recorded the consent to set it aside before moving to the High Court. The conduct of the Appellant from the proceedings leave a lot to be desired. There is nothing to show the suit in Maua CMCC 167 of 2019 was a representative suit and the Assistant Chief of Njia Ciamwendwa has sworn an affidavit saying the only known wife of the deceased was Rael Kananu Kobia. This averment has not been controverted, claims that clan elders met and agreed to have the body of the deceased buried by the 1st wife is an issue that should have been raised in the Lower court during trial.
The Appellant is hereby ordered to produce the body of the deceased for burial as per the order of the court made on 9. 12. 2019 within 7 days of this ruling, failure to which he risks being cited for contempt of court order.
Costs of this application to be paid by the appellant/Applicant
HON A. ONG’INJO
JUDGE
RULING DELIVERED, DATED AND SIGNED IN COURT ON23rd DAY OF JANUARY 2020.
In the presence of:
C/A: Kinoti
Appellant:- Mr Munene Advocate for Appellant
Respondent:-Mr Muthamia Advocate holding brief for Hosea Mutembei Advocate for Respondent .
HON A. ONG’INJO
JUDGE