[2000] KEHC 448 (KLR)
The court held that a consent order, once recorded by the parties and adopted by the court, constitutes a decree for the purposes of the Civil Procedure Rules. The judge emphasized that in determining whether an order is a decree, the substance of the order must be considered rather than its form. The court relied...
Source-derived case information.
- Citation
- [2000] KEHC 448 (KLR)
- Parties
- Defendant: Nzuki Mwinzi; Plaintiff: Kenya National Assurance Co. Ltd. & Another
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1393 of 1997
- Procedural Posture
- Civil Case / Preliminary Objection Ruling
- Outcome
- preliminary objection overruled
- Legal Topics
- Consent Orders, Decrees, Preliminary Objection, Settlement Agreements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nzuki Mwinzi
Defendant
Kenya National Assurance Co. Ltd. & Another
Plaintiff
Procedural Posture
Civil Case / Preliminary Objection Ruling
Legal Issues
- 1 Whether a consent order recorded by the parties constitutes a decree under the Civil Procedure Rules.
- 2 Whether an application can be brought under Order 20 of the Civil Procedure Rules in the absence of a formal decree.
Ratio Decidendi
The court held that a consent order, once recorded by the parties and adopted by the court, constitutes a decree for the purposes of the Civil Procedure Rules. The judge emphasized that in determining whether an order is a decree, the substance of the order must be considered rather than its form. The court relied on both statutory provisions and case law to conclude that the compromise reached by the parties and recorded as a consent order effectively terminates the proceedings and is enforceable as a decree. Consequently, the preliminary objection that the application could not be brought under Order 20 due to the absence of a decree was overruled.
Court Disposition
preliminary objection overruled
Orders
- The preliminary objection is overruled.
Full Case Text
Judgment text and source record
5 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI MILIMANI COMMERCIAL COURTS CIVIL CASE NO. 1393 OF 1997 NZUKI MWINZI…………………………………………………………...DEFENDANT VERSUS KENYA NATIONAL ASSURANCE CO. LTD. & ANOTHER…………..PLAINTIFF
RULING
Mrs. Mwenesi raises a preliminary objection to the application on the ground that the application on the ground that the application does not fall under the provision of order 20 of the Civil Procedure Rules as there is no decree in existence in this suit.
The circumstances which led to the application objected to were that following the filing of the suit the parties reached a settlement and recorded a consent order in which the applicant was to pay the sum of Shs.4,016,333/30 within 60 days. According to Mrs. Mwenesi for thereto be a decree there must have been adjudication which leads to the termination of the proceedings under order 24th Rule 6 of the Civil Procedure Rules, where by an agreement between the parties the question of liability is settled it constitutes a conclusive determination of the matters in contraversy in the suit. In Lal Singh v. Munish Ram & Co. (1937) 4 Eaca 9. (CAK) it was held that where a suit has been settled by a compromise recorded under the rule the decree is passed upon the new contract between the parties which supercedes the original cause of action. Section 67 (2) of the Civil Procedure Rules provides that no appeal shall be from a decree passed by the court with the consent of the parties. My reading of this Section 67 and order 24 rule 6 is that a consent order is a decree. One has to bear in mind that in determining whether an order constitutes are decree one has to look at the substance and not the form. The objection is ove ruled.
Dated and delivered at Nairobi this 9th February, 2000. KASANGA MULWAJUDGE