[2020] KEHC 1244 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MALINDI

CIVIL APPEAL NO. E005 OF 2020

SNI .................................. APPELLANT

VERSUS

AOF .............................. RESPONDENT

Coram: Hon. Justice R. Nyakundi

Appellant in person

Respondent in person

RULING

By way of a notice of motion filed in Court on 7. 10. 2020 the appellant SNI claimed interalia: That an order of the Honourable Sheikh Twalib B. Mohamed Principal Kadhi – Malindi made on 7. 12. 2010 and 6. 10. 2020 in respect of their son to be handed over to his father on or before 8. 10. 2020 be complied or face civil jail be varied or set aside. She also claimed that the order was made without the Honourable Kadhi being seized of jurisdiction on children matters.

Further that the order by the Honourable Kadhi is in contraction of a similar order issued by Tononoka Children’s Court in Tononoka E012 of 2020 involving the same subject matter on the custody of the child.

With respect to the proposed orders, the applicant relied on her affidavit in support dated 7. 10. 2020. On consideration of the matter an order was issued for service and interpartes hearing but the close of time frame set on case management directions, there was no reply to the motion.

Background

The applicant on 10. 6.2010 filed suit against the respondent seeking:

(1). An order for judicial separation or injunction restraining him from visiting her residence.

(2). An injunction to prevent the respondent from committing acts of physical violence on the applicant.

(3). An order directing the respondent to at least provide for the child in terms of clothes, food, school fees and medicals.

(4). An order to pay for the rented premises where the plaintiff and the child live.

In that case the record shows the parties entered into a consent Judgment adopted by the Honourable Kadhi on 18. 10. 2010. This according to the terms stipulated therein permitted as follows:

(1). That the defendant/respondent do provide maintenance to the applicant/plaintiff and their child at a rate of Kshs.6,000/= per month.

(2). That the defendant/respondent do provide school fees of the child, clothes and medical expenses of his family separately.

(3). That the defendant/respondent is hereby restrained by way of injunction from assaulting the plaintiff/applicant.

(4). That the plaintiff/applicant do quit her current job by 31. 10. 2020 but she may work elsewhere provided that the environment is conducive and the defendant/respondent has custody.

(5). That until then parties decide otherwise the plaintiff/applicant and their child do live with her cousin, AM at Mombasa and the defendant shall visit them regularly.

(6). That the parties do live together harmoniously.

In circumstances that are not clear another application dated 7. 12. 2010 had been heard and a consent order recorded as follows:

(1). That the parties having legally divorced do register the same and issued with the divorce certificate.

(2). That the custody of the child AA be and is hereby granted to the father and the mother is granted unlimited access to the child upon prior arrangement with the father.

The above orders, in brief, are the facts before the Honourable Kadhi and upon which both consents were reached and adopted as Court orders binding to the parties.

In the present application, the appellant’s contention is to have those orders set aside, varied or struck out altogether. The applicants second point is that the Honourable Kadhi, did not have the jurisdiction to adjudicate other children matters, being a preserve of the Children’s Court. On this, the appellant deposed that there is currently a children’s case before Tononoka Court appearing to proceed on the premise that the dispute with respect to the child is a fresh issue.

Determination

Facial examination of the record shows existence of consent orders which may have been reached by both parties in the presence of Honourable Kadhi in the respective dates. By reason expressed in the case of Windsor Commercial Land Company Ltd & others v Century National Merchant Bank Trust Ltd SCCA 114/2005:

“The Court will not interfere or disturb a consent order between the parties other than on those grounds in which it would interfere with any other contract. These would include mistake, misrepresentation, duress and undue influence.”

Prudence, indeed will dictate that parties legal effect deprived from the consent orders should be deliberately be bound unless there is evidence that every material fact in their possession was invariably mistaken or misrepresented to warrant a variation or complete setting aside the order. It is integral as the Court held in Flora N. Wasike v Destinno Wamboko {1988} eKLR that:

“It is now settled Law that a consent Judgment or order has a 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 . (See the decision in J. M. Mwakio v Kenya Commercial Bank Ltd CA No. 28 of 1982).”

I have had the benefit of considering a range of materials and issues addressing the various issues raised by the appellant specifically, I have in mind the issue on custody of the child following the consent orders agreed and adopted by the Court.

In addition, the appellant has filed a children’s case referred as E012 of 2020 at Tononoka Children’s Court in Mombasa. The difficulty that arises is that there are in place orders which remain binding to the parties. There is no application filed to vary or set aside the orders. Consent orders in these proceedings are Court orders that set out what both parents must do. The applicant although aggrieved with some of the terms in the consent subsequent litigation on the face of it fails to secure her the reliefs to vary the orders.

Fundamentally, the applicant outlined the evidence upon which the consent orders were arrived at in so far as the dispute between them presented itself.

In the case of Frank Phipps & Pearl Phipps v Harold Morrison SCCA 86 of 2008 Harris JA stated:

“As a general rule, an order obtained by the consent of the parties is binding. It remains valid and subsisting until set aside by fresh proceedings brought for that purpose. Kinch v Walcott and Others {1929} A.C. 482 “The bringing of fresh proceedings would normally be guided on the obtaining of the consent order by fraud, mistake or misrepresentation.”

Wildung v Sanderson {1897} 2 CL 534:

“A consent Judgment or order is meant to be the formal result and expression of an agreement already arrived at by the parties to the proceedings embodied in an order of the Court. The fact of its being so expressed puts the parties in a different position from the position of those who have simply entered into an ordinary agreement. It is of course, enforceable while it stands, and a party affected by it cannot if he concludes, he is entitled to relief, simply wait until it is sought to be enforced against him, and then raised by way of defence. The matters in respect of which he desires to be relieved. He must, when he has completed obey it, unless and until he can get it set aside in proceedings duly constituted for this purpose.”

It is clear that the applicant in both consent orders she has failed to comply regarding the issue of the minor. It may be argued that the Honourable Kadhi, had no jurisdiction over children matters but it would be dishonest on the part of the applicant, in essence not to file any such proceedings to vacate the consent orders. In any event, I am particularly conscious that the Kadhi’s Court is a creature of the Constitution with jurisdiction to handle disputes arising out of personal Law for those who profess Islamic faith.

Notwithstanding what transpired before the Kadhis Court, the decisions cited above on consent Judgment demonstrate that a party who is aggrieved or directly affected by a consent order may apply for it to be set aside on grounds of fraud, mistake, coercion or undue duress.

Suffice to say that in the present case the applicant has failed to satisfy that she has a legal and justiciable case before this Court. I would be reluctant in the circumstances of the certificate of urgency and corresponding notice of motion to interfere with the consent orders as a result of the respondent’s refusal to co-operate with the applicant.

I agree with Lord Demming in Cristle v Cristle {1951} 2 ALL ER 574 in which he stated:

“But, when there is no change of circumstances, I do not think that the Court can alter or vary the agreement of the parties under the liberty to apply. It can only do what is necessary to carry the agreement into effect.”

Looking at the matter as a whole, it is manifestly plain that the applicant has placed no evidence by way of affidavit to challenge the consent orders in favour of the notice of motion filed in Court on 7. 10. 2020.

It is for these reasons; I dismiss the application for lack of merit with no orders as to costs.

DATED, SIGNED AND DELIVERED AT MALINDI THIS 3RD DAY OF DECEMBER 2020

.............................

R. NYAKUNDI

JUDGE