[2023] KEHC 23230 (KLR)

Noah & another v Askoyo (Civil Appeal E049 of 2021) [2023] KEHC 23230 (KLR) (Civ) (5 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23230 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E049 of 2021

CW Meoli, J

October 5, 2023

Between

Elijah Noah

1st Applicant

Justin Mokonia

2nd Applicant

and

James Lubanga Askoyo

Respondent

Ruling

1. Before the court for determination are two (2) motions. The first is dated 01. 02. 2023 and was filed by James Lubanga Askoyo (hereinafter Respondent), and the second is dated 14. 03. 2023 filed by Elijah Noah and Justin Mokonia (hereinafter the 1st and 2nd Appellant/Appellant(s). For purposes of this ruling, the court will hereafter refer to the motions as the Respondent’s motion and the Appellants’ motion, respectively.

2. The Respondent’s motion primarily seeks inter alia that the honorable court be pleased to order the release of Kshs 2,680,550/- plus interest thereon being the amounts held in the fixed joint interest-earning Account No 018018xxxxxxx at Equity Bank of Kenya Limited, Community Supreme Branch as of 28. 03. 2022, to the firm of Brenda & Brenda Advocates on behalf of the Respondent through the following account details: Account Name: Brenda & Brenda Advocates, Bank: Bank of Africa, Branch Name: Nairobi Branch, Account No 0116245xxxxx.

3. The motion is expressed to be brought under Section 1A, 1B & 3A of the Civil Procedure Act (CPA), and Order 51 Rule 1 of the Civil Procedure Rules (CPR). And based on grounds on the face of the motion as amplified in the supporting affidavit sworn by Fozah Onyimbo, counsel on record for the Respondent. To the effect that the Appellants filed their memorandum of appeal in February of 2021 and upon application to this court on 10. 02. 2022 were granted stay on condition that they deposit the decretal sum into a joint interest-earning account in the name of the parties’ advocates. That the Appellants have since failed to take any steps for over a year to dispose of the appeal by either taking directions and or serving their memorandum of appeal.

4. She goes on to depose that the latter prompted the Respondent to move the court in order to have the appeal dismissed for want of prosecution and on 13. 10. 2022 the motion was compromised by way of the court issuing directions that the Appellants file their record of appeal within 60 days, in default of which the appeal would stand dismissed. That the 60 days have since lapsed and hence the appeal stands dismissed. That the Respondent who is the decree holder has no source of income and is in dire need of medical attention and continues to suffer loss due to the delay caused by the Appellants through laxity in prosecuting the appeal. In conclusion, she asserts that it is in the interest of fairness and justice that the order sought be granted as prayed.

5. The Appellants opposes the motion through the replying affidavit of Victor Ng’ang’a counsel having conduct of the matter. He asserts that contrary to the Respondent’s assertion, the Appellants are interested in pursuing the appeal but having complied with the orders on deposit of security they have been unable to obtain typed proceedings from the lower court and have meanwhile have filed a motion seeking reinstatement of the instant appeal. He asserts that the delay is not so unreasonable or inordinate as to prejudice the Respondent and any prejudice occasioned can be compensated by an award of costs.

6. Counsel attacks the motion as premature directions not having been taken, and intended to defeat justice. He thus asserts that the appeal ought not be dismissed on grounds that the Appellants are following up on proceedings and complied with stay conditions by depositing security; that the court has unfettered discretion under Section 1A & 3A of the Civil Procedure Act to allow the Appellants to prosecute their appeal; that in accordance with the overriding objective the Appellant are justly, proportionately entitled to the right to fair hearing; and that the appeal being a viable one, the Appellants will be prejudiced in the unfortunate event that the appeal is not reinstated in the interest of justice .

7. The Appellants’ motion on its part seeks inter alia that appeal herein be reinstated for hearing and that the court do make any such further order(s) and issue any other relief it may deem just to grant in the interest of justice. The motion is expressed to be brought inter alia pursuant to Section 1A, 1B & 3A of the Civil Procedure Act (CPA) and is supported by the affidavit sworn by Victor Ng’ang’a. The gist of the affidavit restates the substance of his replying affidavit in opposition to the Respondent’s motion but in addition, counsel contends that despite relentless efforts, the Appellants have been unable to obtain the relevant documents from the lower court to enable them file their record of appeal and as a result the appeal stood dismissed on 13. 12. 2022 for want of prosecution.

8. He further asserts that dismissal of the appeal exposes the Appellants to imminent threat of execution while the delay in filing the record of appeal was inadvertent and compounded by the fact that the advocate handling the file left the firm abruptly with no proper handover. He invokes the provisions of Article 48 and 159 (2) (d) of the Constitution guaranteeing unlimited access to justice without undue regard to procedural technicalities. Asserting that the Appellants are keen on prosecuting their appeal and ought not to be ousted from the seat of justice so that the appeal is reinstated and heard to its logical conclusion. In conclusion, while urging the court to allow the Appellants motion, counsel asserted the same had been made without unreasonable delay.

9. The Respondent opposes the motion through a replying affidavit dated 31. 03. 2023. Similarly, the gist of the Respondent’s affidavit material restated the pith of the affidavit in support of motion dated 01. 02. 2023, in addition the Respondent asserting that 2019 when judgment was delivered in the lower court, the Appellants’ conduct in the matter is exasperating and dilatory. He goes on to depose that the dismissal order on 13. 10. 2022 emanated from an oral consent compromising the Respondent’s motion seeking to dismiss the Appellants appeal for want of prosecution. That the Appellants’ motion does not give reasons why the Appellants are seeking to set aside the orders issued on 13. 10. 2022.

10. The deponent further attacks the Appellants’ motion by deposing that the supporting affidavit thereto is defective and ought to be expunged from the record as it has been sworn by a stranger who has no demonstrated nexus to the matter. That moreover, the Appellants applied for the lower court proceedings on 26. 10. 2022 after this court’s consent order on 13. 10. 2022 which clearly indicates that they had no intention of promptly prosecuting the appeal; that delay in the matter has caused him much suffering as he requires a prosthesis and as a consequence is unable to fend for himself. In conclusion he deposes that the Appellants were only moved to action by the motion seeking release of funds, which conduct demonstrates laxity, hence it is in the interest justice that the court dismisses the Appellant’s motion to allow release of funds as sought in the Respondent’s motion.

11. The two motions were canvassed concurrently by way of written submissions in which counsel reiterated their respective affidavit material and cited legal authorities in support of their rival positions. On the part of the Appellants, counsel contemporaneously submitting on the two (2) motions contended that there was no likelihood that the Respondent would suffer prejudice if in any event the Appellants were accorded the opportunity to prosecute their appeal to its logical conclusion as the order on security has since been complied with.

12. It was further submitted that the Appellants stand to suffer prejudice in the event that their meritorious appeal is not heard on merit thereby infringing on their Constitutional right of appeal and to be heard. Counsel called to aid the decisions in Njai Stephen v Christine Khatiala Andika [2019] eKLR, Jurgen Paul Flach v Jane Akoth Flach, Nakuru Civil Appeal No 119 of 2012, Kirinyaga General Machinery v Hezekiel Mureithi Ireri [2007] eKLR, Allan Otieno Osula v Gurdev Engineering & Construction Ltd [2015] eKLR and Elem Investment Limited v John Mokora Otwoma [2015] eKLR. To support the submission that under Order 42 Rule 35 of the Civil Procedure Rules, an appeal cannot be dismissed for want of prosecution in a situation where directions had not been issued and that the prejudice likely to be occasioned to the Appellants in the matter is greater than the hardship to be occasioned to the Respondent. In conclusion, counsel urged the court to allow the Appellants motion in the interest of justice.

13. Counsel for the Respondent on her part equally and contemporaneously submitted on the two (2) motions. Condensing her submissions into three (3) cogent issues, firstly whether the consent order issued on 13. 10. 2022 ought to be vacated, counsel relied on the decision in Flora N. Wasike v Destimo Wamboko [1988] eKLR to reiterate that the Appellants consented to compromise the Respondent’s motion seeking to dismiss the instant appeal, on the condition that they would file and serve their record of appeal within 60 days, but which they failed to do. That the Appellants have not laid a basis for setting aside the said consent order or demonstrated that the consent was fraudulently obtained or was contrary to the policy of the court.

14. Concerning the second issue, namely, whether the appeal should be reinstated, counsel cited the decision in Mbogo &anotherv Shah (1968) EA 93 as cited in Shadrack Cheserk v Kipserem Mengechi &another [2016] eKLR and Order 42 Rule 35 of the Civil Procedure Rules to argue that the Appellants inaction is calculated to ensure that the Respondent is denied the right to enjoy the fruits of judgment. Moreover, that no explanation has been offered for the delay in filing the record of appeal, a prerequisite to fixing the appeal for directions.

15. It was further contended that the court was functus officio on the question of reinstatement of the appeal as it had already addressed itself by dint of the orders issued on 13. 10. 2022 hence the Appellants by their motion are seeking to invite the court to determine a matter upon which it has rendered a final verdict. The decision in Brian Muchiri Waihenya v Jubilee Hauliers Ltd &another; Geminia Insurance Co. Ltd (Interested Party) [2018] eKLR was called to aid.

16. Finally, on the issue of release of monies, it was submitted that the court orders are not cosmetic and the Appellants ought to have known the consequence of failing to comply therewith. In urging the court to dismiss the Appellants’ motion while allowing the Respondent’s motion, counsel emphasized that litigation ought to come to an end to allow the Respondent to enjoy the fruits of successful litigation.

17. The court has considered the rival motions, material canvassed in respect of the same and submissions thereto. The court proposes to first deal with the Appellants motion out of prudency as either its boons or banes will consequentially affect the outcome of the Respondent’s motion. As earlier captured the gist of the Appellants motion seeks to reinstate the instant appeal that was seemingly dismissed for want of prosecution by effect of a consent order of this court issued on 13. 10. 2022. The Appellants motion invokes inter alia the provisions of Section 1A, 1B & 3A of the Civil Procedure Act (CPA), the latter which reserves “the inherent power of the court to make such orders as may be necessary for ends of justice or to prevent abuse of the process of the court”. The Court of Appeal in Rose Njoki King’au &anotherv Shaba Trustees Limited &another [2018] eKLR stated that:-“Also cited was Section 3A of the Civil Procedure Act which enshrines the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. In Equity Bank Ltd v West Link Mbo Limited [2013], eKLR, Musinga, JA stated inter alia, that, by “inherent power” it means that“Courts of law exist to administer justice and in so doing, they must of necessity balance between competing rights and interests of different parties but within the confines of law, to ensure that the ends of justice are met. Inherent power is the authority possessed by a Court implicitly without its being derived from the Constitution or statute. Such power enables the judiciary to deliver on their constitutional mandate…..inherent power is therefore the natural or essential power conferred upon the court irrespective of any conferment of discretion.”The Supreme Court went further in Board of Governors, Moi High School Kabarak and another versus Malolm Bell [2013] eKLR, to add the following:-“Inherent powers are endowments to the court as will enable it to remain standing as a constitutional authority and to ensure its internal mechanisms are functional. It includes such powers as enable the Court to regulate its intended conduct, to safeguard itself against contemplation or descriptive intrusion from elsewhere and to ensure that its mode of disclosure or duty is consumable, fair and just.” (Emphasis added).

18. That said, it would be important to consider whether in the absence of an express provision for reinstatement of a dismissed appeal, whether the court’s inherent jurisdiction under Section 3A of the CPA can be properly invoked. Or in other words, whether the court has the requisite jurisdiction to entertain the motion before it. At the outset it would be pertinent to examine the record particularly in respect of the events leading up to the dismissal of the appeal herein. The appeal herein was filed on 08. 02. 2021 alongside a motion seeking stay of execution pending hearing and determination of the appeal. The latter motion was determined vide a ruling delivered by this court on 10. 02. 2022 wherein this court allowed the same on condition that the Appellant deposits the entire decretal sum into an interest earning account in the joint name of the parties’ advocates within 45 days of the ruling. The Appellants complied.

19. The Respondent thereafter filed a motion dated 23. 06. 2022 seeking inter alia to dismiss the appeal for want of prosecution. On 13. 10. 2022 when parties appeared before this court to confirm compliance on disposal of the said motion, counsel for the parties agreed to compromise the motion by consent on terms that the Appellants file their record of appeal within 60 (sixty) days of the consent failing to which the appeal would stand dismissed for want of prosecution. The effect of the foregoing consent order was that, the Appellants were to file and possibly serve their record of appeal on or before 13. 12. 2022. They failed to do so, thus necessitating both motions presently for consideration.

20. It would be important to contextualize the effect of proceedings before this court on 13. 10. 2022. In essence the appeal herein was dismissed by dint of a consent order whose net effect culmunated on 13. 12. 2022 whereas the Appellant in seeking to reinstate the instant appeal would appear to be invoking the jurisdiction of this court to set aside a consent order that has since taken effect. That said, the Appellants premise the reason the appeal was dismissed on two (2) issues, firstly, that despite relentless efforts they have been unable to obtain relevant documents from the lower court to enable them file their record of appeal and secondly the delay was further compounded by the fact that the counsel handling the matter left the Appellants advocates firm abruptly without conducting a proper handover. The Respondent took issue with the said reasons as advanced by the Appellants by contending that the dismissal order that took effect on 13. 12. 2022 emanated from an oral consent compromising the Respondent’s motion dated 23. 06. 2022 seeking to dismiss the appeal for want of prosecution in the first place meanwhile the Appellants have not advanced any reasons why the court ought to set aside the consent order issued on 13. 10. 2022. And that Appellants applied for the lower court proceedings on 26. 10. 2022 after the consent order on 13. 10. 2022, which clearly indicates that they had no intention of promptly prosecuting the appeal.

21. The fact that parties herein entered into a consent order on 13. 10. 2022 in compromise of the motion dated 23. 06. 2022 is not in dispute, and all that the Appellants have presented by the instant motion is to offer an explanation after the fact for failing to comply with the consent order. To that end, in determining the same the court must consider whether the Appellants have established grounds for the setting aside or variation of the consent order.

22. 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…

23. 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.

24. 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.”

25. 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.

26. As earlier stated the instant motion is an explanation after the fact. No attempts were made to arrest the situation prior to the lapse of the sixty (60) days, which in hindsight would have been futile given the consent order on 13. 10. 2022. Further the Applicant’s advocate does not explain his alleged error or misapprehension of the terms recorded in his presence and with his consent. The explanation presently being proffered at this juncture would have been useful prior to recording of the consent order. That said, applying the principles in Kenya Commercial Bank (supra) to the facts of this case, it is beyond dispute that the Appellants advocate had the implied and ostensible general authority to bind the Appellants in compromising the action in terms of the consent record on 13. 10. 2022. 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 Appellants to the said advocate.

27. The Appellants have also attempted to lay blame on mistake of counsel who allegedly abruptly left the firm without proper handing over of the matter. In the court’s observation, the explanation is an attempt to clutch at straws. The fault clearly lay with counsel who willingly recorded a consent on 13. 10. 2022 and failed to promptly comply. This explanation brings to mind the dicta in Daqare Transporters Limited v Chevron Kenya Limited [2020] eKLR, the court though considering a slightly different issue, observing that; -“…. The adage rule that the mistake of counsel should not be visited upon an innocent litigant does not have a blanket application. Nor do we think that it has doctrinal status. The court must always look into the conduct of the party pointing the finger of blame in order to make a just decision.”

28. The Appellants themselves eschewed filing any affidavit material to offer explanation. Further, the sanctity of court orders is put to the test where a court order (consent order) is issued, and upon non-compliance, a party whimsically approaches a court to vary and or set aside the said court order despite their own default. In respect of foregoing, I can do no better than echo the words of Ojwang, J (as he then was) in B v Attorney General [2004] 1 KLR 431 that:“The Court does not, and ought not to be seen to, make orders in vain; otherwise, the Court would be exposed to ridicule, and no agency of the Constitutional order would then be left in place to serve as a guarantee for legality, and for the rights of all people.”

29. Consequently, the motion falls short of citing any conduct on the part of the counsel that would amount to fraud, collusion, or misrepresentation of material facts. What makes the Appellants claims more unbelievable is the fact that a request for proceedings before the lower court was made some thirteen (13) days after the consent order was recorded ( see annexure JLA in the Respondent’s Replying affidavit) whereas the appeal was filed in 2021, thus lending credence to the Respondent’s argument that there was no urgency on the part of the Appellants to expedite hearing and disposal of the instant appeal.

30. In any event the Appellants were not hamstrung in complying with the consent order. As of the date of hearing of the motions, the Appellants had not attempted to comply with the consent order by filing of an incomplete record of appeal, in good faith, with the liberty of filing a supplementary record of appeal to include the documents they were yet to obtain. Upon considering all these matters, the Court is of the view that the Appellants motion is not only devoid of merit but is also an afterthought. The Appellant’s motion is ripe for dismissal and is dismissed with costs.

31. The court thus need not belabor the merits of the Respondent’s motion which ought to be allowed as prayed in light of the foregoing. The Respondent’s motion is allowed with costs.

DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 5TH DAY OF OCTOBER 2023. C.MEOLIJUDGEIn the presence ofFor the appellant: Mr. NjugunaFor the respondent: Ms. FozahC/A: Carol