[2015] KEHC 1272 (KLR)
The court found that the respondent failed to demonstrate compliance with the consent order requiring payment of Kshs.471,000 within 30 days. In the absence of such compliance, and since there was no evidence of fraud or mistake in the consent, the court held that it could not interfere with the parties' agreement....
Source-derived case information.
- Citation
- [2015] KEHC 1272 (KLR)
- Parties
- Applicant: Otieno, Yogo, Ojuro & Company Advocates; Respondent: Madam R. Enterprises
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 168 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Convert Certificate of Costs Into Decree
- Outcome
- application allowed
- Legal Topics
- Taxation of Costs, Conversion of Certificate to Decree, Consent Orders, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Otieno, Yogo, Ojuro & Company Advocates
Applicant
Madam R. Enterprises
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Convert Certificate of Costs Into Decree
Legal Issues
- 1 Whether the certificate of costs should be converted into a decree and judgment of the court despite a pending reference.
- 2 Whether the respondent complied with the consent order requiring payment of Kshs.471,000 within 30 days.
- 3 Whether the court can interfere with the consent order between the parties.
Ratio Decidendi
The court found that the respondent failed to demonstrate compliance with the consent order requiring payment of Kshs.471,000 within 30 days. In the absence of such compliance, and since there was no evidence of fraud or mistake in the consent, the court held that it could not interfere with the parties' agreement. The pending reference did not bar the applicant from seeking conversion of the certificate of costs into a decree, as the stay of execution was conditional upon payment, which was not fulfilled. Therefore, the application to convert the certificate of costs into a decree and judgment was allowed, with costs to the applicant.
Court Disposition
application allowed
Orders
- The application dated 23.10.14 is allowed.
- The certificate of costs issued on 3.10.14 is converted into a decree and judgment of the court.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
MISCELLANEOUS APPLICATION NO.168 OF 2014
OTIENO, YOGO,OJURO & COMPANYADVOCATES................ADVOCATE/APPLICANT
VERSUS
MADAM R. ENTERPRISES …....................................................CLIENT/RESPONDENT
R U L I N G
The applicants prays in their application dated 4. 10. 14 that the certificate of costs issued by this court on 3. 10. 14 be converted into a decree and judgment of the court. The same is premised on the affidavit of ERC OTIENO OJURO sworn on 9. 10. 14 in which he has attached a certificate of costs dated 3. 10. 14 for the sum of Kshs.390,176,217. 58.
The respondent has filed grounds of opposition dated 29. 1.15 in which it states that there is a pending Reference and consequently it is premature for the applicant to seek the prayers in the application. It further refers to a consent order dated 30. 10. 14 in which the parties allowed the respondent to prosecute its Reference out of time.
I have perused the application and in particular the consent dated 30. 10. 14. Apart from allowing the reference to be filed out of time the parties agreed under paragrah (e) and (f) as follows:
(e) “ The applicant /client do pay to the respondent/advocate the sum of Kshs.471,000 within 30 days from today.”
(f) “On payment of the sum of Kshs.471000 in terms of order number
(e) there shall be stay of execution and or recovery proceedingsof the taxed costs of Kshs.390,176,217. 58/= but in default, execution and or costs, recovery proceedings shall issue.”
From the applicants submissions it appears that the respondent failed to comply with principle (e) of the consent. At any rate the respondent did not demonstrate to this court whether it had indeed paid the agreed sum of Kshs.471,000 within the 30 days stipulated.
In the absence of compliance, with paragraph (e) of the consent I am unable to find any plausible reason to disallow the application. This court cannot interfere with the consent by the parties unless it is proved that the same was entered as a consequence of fraud or mistake.
Consequently I shall allow the application dated 23. 10. 14 with costs to the applicants.
Dated, signed and delivered this 16th day of November 2015
H. K. CHEMITEI
J U D G E