[2016] KEHC 4817 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

ENVIRONMENT AND LAND COURT CASE NO. 65 OF 2013

PHILIP ACHUKI NDUBI………………………………....………1ST PLAINTIFF

ELIJAH MONDA NYANCHOKA…………...…………...……2ND PLAINTIFF

VERSUS

DR. ANIL TAYLOR………………………………………..….……DEFENDANT

RULING

The suit by the plaintiffs brought vide a plaint dated 5th December 2012 but filed on 19th February 2013 was founded on wrongful eviction and repossession of tools of trade of the plaintiffs by the defendant. The 1st plaintiff by the plaint sought damages for breach of contract relating to an agreement for lease that the plaintiffs had entered with the defendant for the operation of a school.

Although the defendant entered appearance in the suit on 25th February 2013 no defence was filed by the defendant. Instead the 1st plaintiff and the defendant appear to have compromised the suit on the terms of a consent entered into between the parties and which consent was filed in court on 18th March 2013. The signed consent between the parties was in the following terms:-

“I Philip Achiki Ndubi being the plaintiff in case No. HCC No. 65 of 2013 have agreed with Dr. Anil R. Tailor to settle the matter out of court on terms:

That he Dr. Tailor pays kshs. 80,000/= to me.

That I forego the court action.

I take whatever my property in school namely:-

2 tables

1 chair

Any other property that is mine.

I have today received kshs. 5,000/= as part payment pending payment by the defence counsel Mr. Soire.”

The 1st plaintiff vide an application dated 6th May 2013 sought to have the above consent set aside for what he termed disobedience of the order. Hon. Justice Okong’o dismissed the 1st plaintiff’s said application. In his ruling the judge observed at page 9 thus:-

“In any event, the consent provided that the defendant was to pay to the 1st plaintiff a sum of kshs. 80,000/00 and that the 1st plaintiff was to discontinue the suit and also collect his properties from the school. The 1st plaintiff admitted the defendant paid him kshs. 80,000. 00 that was provided for under the consent. In my view, this was the only thing that the defendant was obliged to do under the consent. The other terms of the consent were to be complied with by the 1st plaintiff. The consent letter did not provide that the defendant was to hand over the 1st plaintiff’s properties to him or that the defendant would give him access to take delivery.”

The record shows that on 7th April 2014 the matter was fixed for formal proof hearing when Mr. Soire Advocate for the defendant raised the issue of the suit having been compromised on the terms of the consent and hence there was nothing that remained to go to hearing. The 1st plaintiff for his part stated he would like to enforce the consent as the same was only partially fulfilled. It was then that the court made the following order:-

“This matter is stood over generally. The plaintiff is at liberty to move the court to enforce the consent filed on 18th March 2013 if he is of the view that the same has been breached.”

The record further shows the 1st plaintiff took out a Notice to Show Cause (NTSC) dated 4th May 2015 which was fixed for hearing on 14th May 2015 before the deputy registrar. The NTSC advised the defendant that his presence would be dispensed with if the sum of kshs. 387,110/= being the balance or amount owing on the decree was deposited in court. On 14th May 2015 the NTSC was not heard as scheduled as the same was adjourned and a new date for hearing was to be taken at the court registry. The record does not show that the NTSC was eventually heard. The record further does not show when judgment in the suit was given and in what terms.

The 1st plaintiff by an application for execution of decree filed in court on 13th July 2015 seeks execution by means of attachment and sale of the defendant’s (J/D’s) movable property. The decree extracted in this suit indicates judgment in this case was entered on 7th April 2014. I have earlier in this ruling referred to the proceedings in court on 7th April 2014 and quite clearly no judgment was entered by Hon. Justice Okong’o as the judge merely ordered the matter to be marked stood over generally.

I have made extensive reference to the record of the court to contextualize the defendant’s application dated 17th August 2015 which application is the subject of this ruling. The application seeks interalia the following orders:-

That the court be pleased to stay illegal proclamation of attachment issued on 11th August, 2015 pending the hearing of this application inter partes.

That a temporary stay of execution of the alleged decree herein pending the hearing and determination of the suit.

That the court be pleased to set aside the alleged judgment and decree herein pending the hearing and determination of the suit.

That the respondent be condemned to meet the costs of the application.

In my preliminary review of the file record it has become patently clear and evident that there was no relevant judgment entered in favour of the 1st plaintiff in this matter that was capable of being executed. Indeed there was no liquidated demand/claim by the plaint which would have enabled a judgment for the liquidated sum to be entered in favour of the 1st plaintiff. A formal proof would have been required for any judgment to be entered having regard to the nature of the claim made under the plaint.

The alleged consent which the 1st plaintiff claims to have been breached or partially fulfilled only provided the defendant was to pay to the 1st plaintiff a sum of kshs. 80,000/= which the 1st plaintiff was paid and that the 1st plaintiff was to collect his properties from the school. The consent did not attach any value to the properties that the 1st plaintiff was to collect from the school. Thus even if it was to be held that the consent was not fully performed, then it would have been necessary to have a formal proof hearing to establish what properties of the 1st plaintiff were not released and their respective values. It is not clear where the 1st plaintiff plucked the sum of kshs. 387,110/= indicated in the NTSC form. The extracted decree cites the date of judgment as 7th April 2014 yet no judgment was entered by the court on that day.

The 1st plaintiff has opposed the application by the defendant and has filed submissions. I have considered the submissions filed by the 1st plaintiff and I do not consider that the apparent irregularities as relates to the entry of judgment, extraction of the decree and processing of the NTSC have been satisfactorily addressed. This is a court of justice and it will not allow a party to short circuit the procedural processes where that prejudices the other party. The defendant in the present suit was of the view that the consent entered into with the plaintiff fully compromised the suit. If the 1st plaintiff felt that the same did not, he was entitled as advised by Hon. Justice Okong’o to move the court to have the same fully complied with.

The option the 1st plaintiff had was to set out the aspects of the consent that were not complied with and to seek to prove that the compliance was partial. The 1st plaintiff omitted to do that and instead sought to obtain an ex parte judgment yet by the consent the 1st plaintiff had stated that he had foregone the suit. Technically there was no suit before the court following the consent which compromised the suit. The court would only have become seized of the matter if the 1st plaintiff proved that the terms of the consent had not been met and it was necessary therefore for the court to hear the case.

As I am satisfied there was no valid judgment or decree in this suit entered in favour of the 1st plaintiff. I will accordingly set aside the purported judgment entered on 7th April 2014 and the decree issued herein and all the consequential orders. I grant the defendant’s application in terms of prayers 4 and 5 and I award the defendant the costs of the application dated 17th August 2015.

Orders accordingly.

Ruling dated, signedand deliveredat Kisii this 29th day of April, 2016.

J. M MUTUNGI

JUDGE

In the presence of:

………………………………………….. for the plaintiff

………………………………….……… for the defendant

………………………………….……… Court assistant

J. M. MUTUNGI

JUDGE