[2023] KEHC 23885 (KLR)

Pacis Insurance Co. Ltd v Githiru (the Administrator of the Estate of Lydia Waruguru - Deceased) (Civil Appeal E030 of 2022) [2023] KEHC 23885 (KLR) (19 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23885 (KLR)

Republic of Kenya

In the High Court at Kiambu

Civil Appeal E030 of 2022

PM Mulwa, J

October 19, 2023

Between

Pacis Insurance Co. Ltd

Appellant

and

Samuel Ndungu Githiru (the Administrator of the Estate of Lydia Waruguru - Deceased)

Respondent

Judgment

1. This is an appeal against the ruling and order of Hon. S.K Motari delivered on the 25th February 2022 in Kiambu Chief Magistrates Court Civil Case No. 253 of 2020.

2. The appellant filed his memorandum of appeal dated 28th February 2022, which memorandum is premised on the following grounds:i.That the learned trial magistrate erred in law and facts by failing to properly scrutinize and evaluate the evidence tendered by the Appellants and correctly relate the same to the case law cited in court and thereby failed to arrive at a fair and reasonable Ruling on the matters raised by the Appellant.ii.That the learned trial magistrate erred in law and fact in deciding the case against the weight of the evidence on record and making a decision to dismiss the Appellants application.iii.That the learned trial magistrate erred both in law and fact by dismissing the Appellants application against the weight of the evidence produced by way of Affidavit before the court and without any consideration to the submissions of the Appellants.iv.That the trial magistrate erred in law and fact in failing to properly take into account the proper legal principles regarding statutory liability of Insurance Companies under Insurance Motor Vehicle Third Party Claims Act, Cap 405 and failing to consider the judgment awards in cases of similar nature highlighted in the Appellants submissions.v.That the trial magistrate erred in law and fact in failing to find that the demand for payment of Kshs. 2,760,426. 47 is over and above the consent judgment of Kshs. 3,000. 000/= entered into by both parties and beyond the limit payable by the Applicant in accordance with the Insurance Motor Vehicle Third Party Claims Act, Cap 405 Laws of Kenya.

3. The background of this appeal is that the respondent herein, Samuel Ndungu Githiru, had filed a primary suit against the appellant as a result of an accident that occurred on 3rd October 2018 involving motor vehicle registration number KCK 870D belonging to the appellant’s insured and which had been insured by the appellant. Judgement was summarily entered in favor of the respondent against the appellant’s insured for the sum of Kshs. 5,045,000 with costs of the suit.

4. The appellant having been duly served with summons to enter appearance and all relevant pleadings, failed to enter appearance or file a statement of defence within the period required by law and upon request, judgement was summarily entered against the appellant.

5. However, when the respondent attempted to execute the decree, the parties filed a consent setting aside the ex-parte judgement entered against the appellant of Kshs. 5,417,089 on the following terms;i.The defendant/applicant do pay a sum of Kshs. 3,000,000 within 30 days from the date hereofii.The file be mentioned after 30 days for purposes of a further consentiii.There be a stay of execution for a period of 30 days

6. The appellant failed to comply with the aforementioned terms of the consent and subsequently filed an application dated 25th February 2022 seeking to stay execution of the warrants of attachment and sale entered against him.

7. The trial court delivered its ruling dismissing the aforementioned application, which ruling is subject of this appeal. The parties agreed to canvas the appeal by way of written submissions and the record reflects that both parties have complied. All parties indicated that they would be relying on the said written submissions as presented. I have had the benefit of reading through the written submissions and I need not to duplicate the same herein.

8. Being a first appeal, it is my duty to analyze and re-assess the evidence on record and reach my own conclusions. In Selle v Associated Motor Boat Co. [1968] EA 123, it was expressed as follows:“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A 270. ”

9. This Court finds that the only issue that arises for determination, is whether the Appeal herein is rightfully before the Court.

10. Parties have not disputed the existence of a Consent Order dated 17th December 2020 and the same has not been varied nor set aside.

11. In the case of Kenya Commercial Bank Ltd v Specialized Engineering Co. Ltd [1982] KLR 485, Harris, J correctly held, inter alia, that: -“…1. A consent order entered into by counsel is binding on all parties to the proceedings and cannot be set aside or varied unless it is proved that it was obtained by fraud or collusion or by an agreement contrary to the policy of the court or where the consent was given without sufficient material facts or in misapprehension or ignorance of such facts in general for a reason which would enable the court to set aside an agreement…”

12. I have perused the pleadings and the record before the trial court and I note that the appellant partially complied with the Consent Order no.1 but failed to comply with Consent Order no.2 that required parties to record a further consent within 30 days.

13. This court also finds that as per the Consent Order no.3, the respondent was at liberty to execute in view of the non-compliance by the appellant with Orders 1 and 2 of the Consent Order at the lapse of 30 days.

14. The Court of Appeal in the case of Fred Matiang’i, The Cabinet Secretary - Ministry of Interior and Co-ordination of National Government v Miguna Miguna & 4 Others [2018] eKLR, stated the following with regard to orders of the court: -“…When courts issue orders, they do so not as suggestions or pleas to the persons at whom they are directed. Court orders issue ex cathedra, are compulsive, peremptory and expressly binding. It is not for any party; be he high or low, weak or mighty and quite regardless of his status or standing in society, to decide whether or not to obey; to choose which to obey and which to ignore or to negotiate the manner of his compliance. This Court, as must all courts, will deal firmly and decisively with any party who deigns to disobey court orders and will do so not only to preserve its own authority and dignity but the more to ensure and demonstrate that the constitutional edicts of equality under the law, and the upholding of the rule of law are not mere platitudes but present realities…”

15. Consequently, counsel and litigants are reminded time and again that once a Consent Order is adopted as an Order of the Court as was, in this case, done on 17th December 2020, the same becomes an order of the court that is binding on the parties.

16. Then there is the issue that the appellant’s insurance liability of third party per person is capped at Kshs. 3,000,000 as per the Insurance (Motor Vehicle 3rd Party Risks) Act and as such the respondent cannot compel the appellant’s insurance to pay more than the prescribed amount under the Act. It is my considered view that the same can only be determined by the trial court which is still seized of the jurisdiction to hear and determine the suit once the appellant fully complies with the consent order of 17th December 2020. The appellant’s reliance on Section 5(b)(iv) at this juncture is an attempt to appeal on quantum through the back door and should not be allowed.

17. In sum, I find no merit in the appeal and dismiss it with costs.

JUDGMENT DELIVERED VIRTUALLY, SIGNED AND DATED AT KIAMBU THIS 19TH DAY OF OCTOBER 2023……………………P. MULWAJUDGEIn the presence of:Duale – court assistantN/A - for the appellantMr. Gikenye - for the respondent