[2019] KEMSET 19 (KLR)

REPUBLIC OF KENYA

IN THE MICRO AND SMALL ENTERPRISES TRIBUNAL AT BUNGOMA

CAUSE NO. 1 OF 2019

PATRICK WALUKHA................................................................................1ST CLAIMANT

BENARD BARASA.....................................................................................2ND CLAIMANT

GETRUDE KHISA......................................................................................3RD CLAIMANT

HERMAN BARASA....................................................................................4TH CLAIMANT

VERSUS

JASON WASIKE MOLI...............................................................................RESPONDENT

RULING

1. Through a Notice of Motion application dated 26th September, 2019 expressed to be brought pursuant to the provisions of Sections 3A of the Civil Procedure Act Cap 21 Laws of Kenya, Order 8 Rule 1 and Order 45 Rule 1 of the Civil Procedure Rules 2010 and Article 81 of the Constitution of Kenya,the Respondent sought that;

[a].This application be certified as urgent and be heard Ex parte in the first instance and there be appropriate interim orders in terms of prayers[b] herein.

[b]. Pending the hearing and determination of this application inter parties, interim orders be issued in terms of prayer[b] below, the consent entered into herein between the claimants and the Respondent and adopted by this honorable tribunal on the 10th September, 2019 be stayed and Elections be suspended to enable the parties agree on an impartial person or organ to conduct the elections.

[c]. The Consent entered into herein between the Claimants and the Respondents and adopted by this honorable tribunal on the 10/9/2015 be reviewed in such a manner that the said Elections be conducted in accordance with the Association’s Constitution, by an impartial person or organ to be agreed on by parties and using the Association’s Official Register.

[d]. Leave be granted to the Respondent to amend his Defence in terms of the draft Defence annexed hereto and the said draft be deemed properly filed subject to the payment of the requisite court fees.

[e] A temporary injunction be issued against Claimants restraining them from preventing the Association’s Chairman [The Respondent herein] the Association’s Treasurer [PETER MIDIMO OGALA] and the Association’s Secretary [BENARD WANJALA] and other officials accessing and operating in the association registered office until the Elections are conducted and new office bearers are elected and assumed office.

[f]. Costs of this application be provided for.’’

2. The application is premised on the numerous grounds put forth on the face of the application , the supporting affidavit that was contemporaneously filed with the application, and the further affidavit filed on the 15th October 2019 pursuant to the leave of this honorable tribunal. The Respondents opposed the application by filing a replying affidavit sworn by the 4th Claimant.

2. On the 9th day of September 2019, when the parties appeared before us, they expressed a common feeling that the claim before us was one that would be determined without necessarily going through the process of a full trial. With this expressed to us, we decided to give the parties time to talk over the matter and come up with a consent settling the same. We consequently adjourned the matter to the 10th of September, 2019 for purposes of checking on the parties’ progress and giving further orders and or directions.

3. On the 10th day of September 2019, learned Counsel Mr. Kiarie for the Respondent addressing us indicated that the parties had met with a view of resolving the matter amicably, however no ground was gained as the combatants herein had different membership registers. According to Counsel Kiarie, the claimants had a register with 247 members while that which the Respondent had, had 231 members. The claimants were substantially in agreement with Counsel for the Respondent on this, save on the fact that according to them the register produced by the Respondent had only 29 bona fidemembers. This notwithstanding, the parties maintained that still there was a possibility of having the dispute compromised by consent.

4. Eventually the parties struck an agreement. Issues for determination were narrowed down to two and the manner of determining the same agreed upon. All these got encompassed in a consent order of the same day, 10th September 2019. The consent order got couched in the following manner;

“By consent of both parties in this matter, it is hereby agreed that;

1. The issues for determination are two:

[i].The holding of elections for Kitale Juakali Welfare Association, and;

[ii].The hand-over of the original Certificate of Lease over Kitale Municipality Block 6/232.

2. On the issue [i]:

[i]. The County Enterprise Development Officer [CEDO] to consider the two registers by the respective parties and harmonize the membership within fourteen [14] days of today’s order as at 12/06/19.

ii. Upon the harmonization of the members’ register, the CEDO to give a twenty-one [21] days’ notice for the Special General Meeting [SGM] for the purpose of conducting elections of the Association.

iii. CEDO, Trans Nzoia to oversee the elections at the AGM.

3. On issue [ii]:

[i]. Upon the elections, the Respondent within seven [7] days to hand over the original Certificate of Lease over Kitale Municipality Block 6/232 to the new office bearers.

4. Each party to bear its own costs.

5. The consent was signed by all the parties and Counsel for the Respondent. The matter was then marked as duly compromised.

6. It is this consent order that the Respondent seeks to have reviewed and consequential orders given as sought in his Notice of Motion Application.

7. Before Counsel Sifuna made his submissions on the application, we allowed his client [the respondent] to address us on oath on one crucial aspect which had come to our notice. The Respondent had pronounced that the ‘’ official” register was no longer available. It had been consumed in an inferno whilst in his possession at his workshop. That the register wasn’t then in the possession of the secretary who could ordinarily have it. Asked by the tribunal whether he had, when making a report to the police given the register as one of those items that were destroyed by the fire, the Respondent stated that he could not tell, as it is his son who made the report to the police and not him. He confirmed that the report to the police was not made immediately after the incident but after a number of days. We shall turn to this later in this judgement and state what its implication is.

8. In his submissions Counsel Professor Sifuna stated that the CEDO had been arbitrating over the dispute between the protagonists herein. In fortification of this submission counsel referred us to correspondences that have been exchanged between the parties and the officer. According to the respondent, the correspondences bring the officer out as a person who has taken sides. Therefore to allow the officer to oversee the elections as ordered in the consent order would be in violation of the general principles for electoral system encapsulated in Article 81 of the Constitution of Kenya.

9. Counsel further submitted that the consent order suggests that there were two registers, yet the Association’s Constitution dictates that there shall be one register kept in a particular manner and by a specific official. That this tribunal would have, held that there can only be one register and consequently insist that the constitution that the Respondent had be used for purposes of the elections. According to him the issue of harmonization of registers would not arise therefore.

10. According to counsel, the amended constitution that the claimants placed before this tribunal was a made up document, crafted only for purposes of this matter. According to the Respondent there had never been an amendment to the Association’s Constitution.

11. That contrary to order of the tribunal the CEDO wrote letters inviting for submission of the rival registers that were mentioned in the order, long after the timelines that were set. This she did after three months according to counsel.

12. An electoral process should be credible. That CEDO had demonstrated bias and lack of impartiality and acted passionately to champion the interest of the claimants, he submitted.

13. According to the claimants the Respondent’s application was prompted by ill faith, with a sole intention of aiding the Respondent to prolong his stay in office. There was no fault in the consent. The consent was read and explained to the parties. It is an order that the Respondent never raised an issue about.

14. The Claimants stated that in compliance with the consent order, they did hand over the register that was in their possession to the CEDO on the 13TH September 2019. That on this day the Respondent was called to the officer’s office. He did come minus the original register. He sought for more time to avail it, a thing he never did.

15. Now we are called upon to make a determination on the Respondent’s application. Looking at the Respondent’s application, the grounds upon which it is anchored, the two affidavits in support thereof, the replying affidavit filed by the Claimants, and the submissions by the parties herein, we are of the view that three grand issues emerge for us to determine, namely;

· Whether or not the consent order herein can be reviewed.

· And if the above is in the affirmative, What just and fit consequential orders that the tribunal can give,

· Whether in the circumstances of this matter an application for an order for amendment of the Response is well seated.

16. We shall deal with each of these issues as we hereunder do.

· Whether or not the consent order herein can be reviewed.

17. There in is no dispute that the order that the Respondent seeks to have reviewed is a consent order. Consent orders or judgements are not just set aside. The law prescribes very stringent conditions that must be met before such an order or judgement is disturbed. We hold this for good purpose. To impede mal fidesconducts and or actions by parties. While appreciating the stringent conditions, counsel stated that the Respondent’s application was deliberately couched the way it was. That deliberately the application did not seek for setting aside of the order. According to counsel, those stringent conditions do not apply to an application where a consent order is sought to be reviewed. We shall shortly demonstrate that Counsel was wrong on this.

18. In the case of East Africa Portland Cement Company Limited v Superior Homes Limited [2017] eKLR,the Court of Appeal held inter alia;

‘’ As for the final ground, we need not belabor the principle, properly conceded by counsel, that the trial court was entitled to consider and if found appropriate vary, set aside or review the consent judgement. The only issue is whether there were compelling grounds for varying or reviewing the consent decree.’’

It is not difficult for us to hold therefore that those stringent conditions also apply to applications for review of consent judgement or orders as much as they apply to applications for setting aside.

19. There is a plethora of cases in the High Court and the Court of Appeal stating the law on the issue of setting aside, varying or reviewing a consent judgement or order. It will suffice to refer to a few.

20. In Wasike v Wamboko, Gicheru J, as he then was held;

‘’1. A consent judgement or order has contractual effect and can only be set aside on grounds which would justify setting aside a contract, or if certain conditions remain to be fulfilled which are not carried out.

2. The Civil Procedure Act [Cap 21] Section 67[2] is not an absolute bar to challenging a decree passed with the consent of the parties where a party seeks to prove that the decree is invalid ab initio and should be rescinded or that there exist circumstances to warrant varying the decree.

3. In this case, there were no grounds which would justify the setting aside of the consent judgement.’’

21. This position is clearly set out inSetton on Judgements and Orders [7th Ed. Vol.1] page 124 as follows-

‘’ prima Facie, any order made in the presence and with the consent is binding on all parties to the proceedings or action, and on those claiming under them…..

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.’’

22. This passage was followed by the Court of Appeal inBrook Bond Liebig Ltd v Mallya [1975] EA Page 266 at 269 in which Law Ag P said:

‘’ A court cannot interfere with a consent judgement except in such circumstances as would afford good for varying or rescinding a contract between the parties’’.

23. In Kenya Commercial Bank Ltd vs Specialized Engineering Co. Ltd. [1982]KLR 485, Harris J, 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.

2. A duly instructed advocate has an implied general authority to compromise and settle the action and the client cannot avail himself of any limitation by him of the implied authority to his advocate unless such limitation was brought to the notice of the other side.

24. The respondent took an attitude that the stringent conditions only applies to situations where an applicant is seeking to set aside a consent order, not where he or she is seeking for a review of the same. With due respect the attitude blinded the respondent. Blinded him from seeing the essence of anchoring his application on these stringent grounds or conditions and placing before us evidence that would establish those grounds or conditions or any of them.

25. Consequently we shall take the path taken by the Court of Appeal in Board of Trustees National Social Security Fund vs Michael Mwalo (2019) eKLR when they held;

‘’ the appellant did not place any evidence to show illegality in the consent giving rise to the judgement and the allegations of collusion and convenience had not even a scintilla of evidence to support them. They remained mere allegations, without more and coming as they did after the appellant’s decision to challenge the consent, they were hardly credible’’.

26. We have not lost sight of the fact that when the consent was recorded, the respondent was represented by counsel – Mr. Kiarie. The issue of bias of the CEDO or the alleged passionate push of interests of the claimants by her was not raised. We asked Counsel Professor Sifuna whether there is anything that the CEDO had done after the consent, something which would exhibit bias or the push for the claimants’ interest by her. His answer to this was in the negative. The allegations of bias and impartiality remained mere allegations without more. Therefore the allegations of breach of principles of electoral systems too remains merely allegations.

27. The respondent placed before the tribunal a constitution which constitution he asserted was the association’s genuine constitution. A keen look at the document revealed that the same is undated and has no sign that it was ever received by the Registrar of Societies. Yet this is the document that respondent wants us to hold violated.

28. Even if we were for a moment to hold that the stringent conditions are not applicable in application for review of consent orders, still we would not find in favour of the respondent’s application. Order 45 of the Civil Procedure Rules, 2010, provides a fountain from which the court’s authority to review flows. The order prescribes the conditions which an applicant seeking for orders of review must satisfy. An error apparent on record, discovery of new and important matter or existence of a sufficient reason. We hold that what the respondent raises in his application fails not only this under grounds but any of them.

29. Herein before we did state that the respondent did on oath pronounce that the registrar he had i.e. the registrar which ordinarily was supposed to be in possession of the secretary got consumed by fire. The respondent candidly admitted that he has no copy made therefrom, did not make the report himself to the police, he is not aware whether or not the register was reported as one of those items that were destroyed and that the report to the police was not immediately made after the incident. All these coupled with the evasive demeanor exhibited by the respondent when we sought clarification(s) from him on this matter prompts us not to believe this story. We are not convinced that the register got destroyed. Our view is that the same is being concealed from the CEDO and the tribunal deliberately.

30. The respondent decided not to have the register to the CEDO as we had directed in the order. He did not give any reasonable convincing explanation for the failure. This fortifies our view that he was determined at all material time to keep the register away from the CEDO.

31. The implication thereof being that there is no other membership register other than that which the claimants surrendered to the CEDO on 24th September, 2019 in compliance with our order of 10th September, 2019.

32. The Association’s elections must be conducted. A membership register must be used. The only register available being that which was surrendered to the CEDO as herein above stated.

Of What Just and Fit Orders We Can Give

33. The claimants in their submissions intimated that they see not any problem even if the elections were to be overseen by any other person. Their concern is that elections for the association be carried out. It is only for this reason that we shall direct that the elections shall be carried out under the supervision of a legal officer seconded from the Micro and Small Enterprises Authority, Head Office with the assistance of CEDO Trans Nzoia.

34. That by reason of the premises we have alluded to herein above, the register to be used for purposes of the election shall be that which the claimants/respondents surrendered to the CEDO on 24. 09. 2019.

Of Whether The Application For Amendment Of The Response Is Well Seated.

35. An amendment of pleadings can only be done during the currency of a matter not after its conclusion. The consent order of 10. 9.2019, brought this matter to conclusion. In the premises, we see no purpose that an amended response can serve.

36. In the upshot we make the following orders;-

(a) The prayer for amendment of the response is hereby declined.

(b) The order of 10. 09. 2019 is hereby reviewed only to the extent that;-

(i) The elections shall be supervised by a legal officer from the Micro and Small Enterprises Authority, Head Office with the assistance of the CEDO, Trans Nzoia.

(ii) The register to be used shall be that which the claimants surrendered to the CEDO on the 24. 9.2019.

38. Orders accordingly.

Dated at Kitale this 16th day of December 2019.

Joseph Were ]…………………………………………..

Ocharo Kebira ]…………………………………………..

Annette Gikuya ]…………………………………………..

Present for the Claimants:

Present for the Respondents:

Court Assistant: