[2021] KEHC 7903 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL DIVISION

HIGH COURT CIVIL CASE NO. 20 OF 2017

SAMUEL KIJOGI MAKUYGI...................................................................PLAINTIFF/APPLICANT

VERSUS

JOHN LAWRENCE ODHIAMBO..............................................1ST DEFENDANT/RESPONDENT

THE STANDARD GROUP LIMITED.......................................2ND DEFENDANT/RESPONDENT

RULING

1. The application dated 9th March, 2020 seeks the following orders:

1. That the consent order recorded and adopted by this honourable court on 4th February, 20019 as an order of the court be and is hereby discharged;

2. That the decretal amount together with any interest thereon held in the joint Account in the name of the two law firms herein, at NCBA Bank (formerly NIC Bank) at KMA Centre Branch, A/c No.(xxxx) be and is hereby transferred to the Plaintiff’s Advocates’ client A/c. No. (xxxx) held at NCBA Bank (formerly NIC Bank) KMA Centre branch;

3. That the advocates of the Defendants/Respondents do co-operate with the advocates of the Plaintiff/Applicant in the execution of the necessary bank instrument to effect the said transfer;

4. That in the event of non-cooperation by the advocates of the Defendants/Respondents the Branch Manager, NCBA Bank formerly (NIC Bank ) KMA Centre Branch, do execute the necessary bank instrument to effect the transfer, for and on behalf of the authorized signatory of the Advocates of the Defendants/Respondents;

5. That costs of this application be in the cause.

2. The application is premised on the grounds set out in the application and the affidavit in support. Judgment was delivered herein on 31st October, 2018. The Applicant’s complaint is that the Respondent did not file any Appeal or any application for review. It is stated that after the Applicant served the Respondents with a letter dated 29th November, 2018 requesting for the approval of the draft decree, the Respondents filed an application seeking orders for stay of execution and leave to appeal out of time. That by the consent of the parties the application was allowed on condition that the decretal sum be deposited in a joint interested earning account in the name of the Advocates for the parties within 90 days.

3. It is the Applicant’s contention that the Respondents have not been diligent in pursuing the Appeal and the same is a guise to abuse the court process and to deprive the Applicant of the fruits of his judgment.

4. In opposition to the application the Respondent filed the grounds of opposition dated 1st February, 2021 which state as follows:

1. The application is made in bad faith, is bad in law and does not lie.

2. The application is frivolous and vexatious.

5. I have considered the application, the response and the submissions filed by the respective counsel for the parties.

6. The Court of Appeal set the principles relating to the setting aside or review of consent orders or judgment in the case of Flora Wasike v Destimo Wamboko [1988] IKAR 625as follows:

“It is now settled law that a consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside, or if certain conditions remain to be fulfilled, which are not carried out.”

7. In the case of Samuel Mbugua Ikumbu v Barclays bank of Kenya Limited [2015] eKLR the Court of Appeal espoused as follows:

“The law on variation of a consent judgment is now settled. The variation of a consent judgment can only be on grounds that would allow for a contract to be vitiated. These grounds include but are not limited to fraud, collusion, illegality, mistake, and agreement being contrary to the policy of the court, absence of sufficient material facts and ignorance of material facts.”

8. In the case of East African Porland Cement Ltd v Superior Homes Ltd [2017] eKLR the Court of Appeal held that compelling grounds can lead to variation or review of a consent order.

9. In the instant case, the consent orders were recorded on 4th February, 2019. It is now over two years since the date of the recording of the consent orders. The consent orders were for stay of execution of the judgment dated 30th October, 2018 pending the hearing and determination of the Appeal. The position taken by the Applicant that the Respondent has not taken any steps to pursue their Appeal is not controverted by any other evidence. The condition that the stay was granted pending the hearing and determination of the Appeal remains and continues to remain unfulfilled.

10. A perusal of the court record reflects that the proceedings herein were typed and the same were ready for collection in the month of December, 2019. The letter dated 16th December, 2019 which has been exhibited herein by the Applicant reflects that the Applicant informed the Respondents that the proceedings had been typed and were ready for collection. There is no explanation why the Respondents have not pursued their Appeal. I agree with the Applicant that the continued delay by the Respondent is prejudicial to the Applicant and an abuse of the court process.

11. The upshot is that the application has merits and is hereby allowed with costs.

DATE, SIGNED AND DELIVERED AT NAIROBI THIS 25TH DAY OF MARCH, 2021

B. THURANIRA JADEN

JUDGE