[2004] KEHC 2738 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

CIVIL SUIT NO. 3022 OF 1990

VERONICAH MUMBI NGUGI..................... PLAINTIFF/APPLICANT

-VERSUS-

JOMO NJOROGE.................................... DEFENDANT/APPLICANT

WAHOME MUTEROI.................................................... THIRD PARTY

RULING

1. The Application, Background, Prayers and Depositions

The Defendant/Applicant's Chamber application dated 26th May,2004 was filed on the same date. It was brought under Order IXBrule 8 of the Civil Procedure Rules, and Section 3A of the CivilProcedure Act (Cap. 21), Laws of Kenya.

Before setting out the content of the application, I should like to setout the background, which is to be found in an earlier hearing at whichthe Defendant was not represented, on 30th April, 2004. The earlierhearing was of the Plaintiff's application by Notice of Motion, dated 5thMarch, 2004 and brought under Order XXIV rule 6 of the Civil Procedure Rules. The Plaintiff had prayed that judgement on liability be entered asbetween the Defendant and the Third Party on an equal contributorybasis of 50% - 50%. Although there was an affidavit of service, dated30th April, 2004 and showing that both counsel on record for theDefendant and the Third Party had been served, those parties were notrepresented at the hearing. Upon a consideration of the application andits grounds as set out on the face of the Notice of Motion, and asdetailed in the supporting depositions, and upon hearing thesubmissions of Mrs. Kambuni who represented the Plaintiff, I ruled asfollows:

"In all the circumstances, I consider it right to grant theprayer in the Notice of Motion application of 5th March, 2004filed on 26th March, 2004. I would make the followingOrders:

1. Judgement on liability is hereby entered, on the basis of50% - 50% proportioning as between the Defendant andthe Third Party.

2. The case may now proceed to the stage of assessment ofdamages.

3. Costs to be in the cause."

Now it is precisely the above Ruling which forms the gravamen ofthe instant Chamber Summons application by the Defendant. He ispraying for Orders -

(a) that, the Court be pleased to set aside and/or review itsorders made on 23rd [sic!] April, 2004 and all theconsequential orders arising there from;

(b) That, the Defendant be allowed to defend against thePlaintiff's Notice of Motion dated 5th March, 2004;

(c) that the costs of this application be provided for.

What grounds does the Defendant state? These are as follows:

(i) That, the Notice of Motion dated 5th March, 2004 washeard as a Friday Judge matter in the absence of counselfor the Defendant and was allowed;

(ii) that, the non-attendance of the Defendant or hisAdvocates to oppose the application was neither intentionalnor deliberate;

(iii) that, the Defendant had a good defence on record whichraises triable issues;

(iv) That, the Defendant stands to suffer irreparable loss anddamage, unless the Orders sought herein are granted;

(v) That, the Defendant had no intention of consenting onliability or quantum and is desirous to have the matter heardand determined by the Court;

(vi) That, the Court has power and discretion to grant theOrders sought.

There are two affidavits in support of the Defendant's application,both sworn and filed on 26th May, 2004. One is by Ms. JaneNyamuringa Ruigu of Mbigi Njuguna & Co. Advocates, the Advocateshaving the conduct of this matter on behalf of the Defendant. The otheris by Jomo Njoroge, the Defendant himself.

The Defendant deposes that he had visited the offices of hisAdvocates on 6th May, 2004 and "gave full instructions to my Advocatesto defend [against] the application and inform me of the progress later."He states: "the Orders obtained on 23rd April, 2004 are highly prejudicialto my interests as I have a good defence against both the Plaintiff andthe Third Party and I do not wish to enter into any consent on bothliability and quantum." He refutes the claim that any consent at all hadever been entered into. He states that those alleged to have executedthe consent, M/s. Shah & Parekh Advocates, had been acting on theinstructions of an insurance company which later repudiated liability against him, before the alleged consent was filed in Court. Thedeponent says he believes the information from his Advocates, that theconsent in question was never filed in Court.

Ms. Jane Nyamuringa Ruigu acknowledges that the Notice ofMotion dated 5th March, 2004 had been served upon her firm on 30thMarch, 2004. But she depones that the service was received by a clerkwho left the employment of her firm almost immediately thereafter and without diarizing the hearing date. She depones that the relevant file gotmisplaced, and was only retrieved towards the end of April; and sheadds: "it was clearly too late as the said Notice of Motion had alreadybeen heard and prayers therein granted." She depones that her firmhad instructions to defend against the Notice of Motion, "and our failureto attend the hearing on the scheduled date or to file a replying affidavitor grounds of opposition was not deliberate.

Counsel for the Plaintiff, on 29th June, 2004 filed grounds ofopposition to the Defendant's Chamber Summons, under Order L rule16 of the Civil Procedure Rules. The grounds are as follows:

(i) That, the application is misconceived and devoid of merit;

(ii) that, the application is an abuse of Court process as theDefendant's Counsel had not opposed the Plaintiff's Noticeof Motion application of 5th March, 2004;

(iii) that, the Applicant is guilty of laches,

(iv) That, the Plaintiff will be prejudiced if this old litigation isnot brought to a conclusion.

2. Submissions for the Defendant/Applicant

On the basis of the foregoing prayers, the stated grounds anddepositions, Ms. L.A. Machio and Mrs. Kambuni came to make theirsubmissions on 14th July, 2004. Ms. Machio began by acknowledgingthat the Orders against which her client's application had been made,were issued on 30th and not 23rd April, 2004. She sought leave by virtueof Order VIA to make the amendment and, as Mrs. Kambuni raised noobjection leave was granted.

Ms. Machio presented the Defendant's case for the setting asideof the Orders of 30th April, 2004 and prayed that the Defendant beallowed to defend against the Plaintiff's Notice of Motion of 5th March,2004. Counsel presented the evidence contained in the affidavits ofJomo Njoroge and Jane Nyamuringa Ruigu, but did not clarify onecurious point which touches on the veracity of the depositions.

Paragraph 4 of the affidavit of Jane Nyamuringa Ruigu reads asfollows:

"THAT, to our great misfortune, our file got misplaced andafter a desperate search in our registry we managed toretrace it towards the end of Aprilbut it was clearly too lateas the said Notice of Motion had already been heard andprayers therein granted."

First, it should be regarded as not true, that towards the end ofAprilthe Plaintiffs Notice of Motion had "already been heard"; thehearing did take place on the very last day of April, i.e. 30th April, 2004. And on this basis, it cannot also be true that the Defendant could nothave put in a response to the said Notice of Motion. Once thedepositions, in the two respects, are proved to have been untrue, thenthe entire account about the file being misplaced, becomes tainted andtakes on the colour of gimmick rather than fact. In this context, therewould be no justification in counsel not filing replies to the Notice ofMotion and its supporting affidavits, especially in the light of theaverment that they had clear instructions from the Defendant to defendagainst the Notice of Motion. On this line of analysis, it must follow thatonly a feeble case is being made for an opportunity to defend againstthe Notice of Motion.

3. Submissions for the Plaintiff/Respondent

Mrs. Kambuni relied on her grounds of opposition filed on 29thJune, 2004 to challenge the submissions made for the Defendant. Shealso reviewed the affidavits in support of the Defendant's case,observing, and quite convincingly, with respect, that the averment atparagraphs 3 and 4 of Jane Nyamuringa Ruigu's affidavit, that clericalimproprieties led to failures of response on behalf of the Defendant, wasa bald claim wanting in credibility. She remarked that hardly anyparticulars were given in respect of the alleged clerical failings: nonames, no dates, no efforts to trace the clerk in question. And yet it wasurged in paragraph 8 of the same affidavit:

"THAT in the circumstances, I verily believe that mistakesand omissions committed by ourselves as Advocates andour said employee should not be visited upon theDefendant/Applicant."

Mrs. Kambuni submitted, in the premises, that the Defendant'sapplication was lacking in bona fides.She submitted that this sameconclusion should be drawn from the fact that hardly any particulars hadbeen set out regarding the misplacement of the file: when exactly did itget misplaced? When exactly was it recovered? If it was recovered towards the end of April, why was there no appearance in Court on 30th April 2004?

Counsel disputed the contention made for the Defendant, that asetting aside of the Orders of 30th April, 2004 would not prejudice thePlaintiff. On the contrary, Mrs. Kambuni submitted, considerableprejudice to the Plaintiff would ensue, as the dates 16th and 17thNovember, 2004 have already been set for formal proof following themaking of the Orders of 30th April, 2004.

Mrs. Kambuni submitted that the Defendant had no basis fordenying that a consent had already been reached on liability, asbetween the Defendant and the Third Party. She noted that theDefendant's attempts to amend his Defence had been refused earlier,on 7th November, 2003 in an application before the Deputy Registrar,and the reason for the refusal had been that already a consent betweenthe parties existed. Regarding paragraph 7 of Jomo Njoroge's affidavit,wherein he says that no consent between the parties had been filed inCourt, counsel submitted that it was immaterial whether or not theconsent had been filed. She contended that the consent should beregarded as an established fact, considering the copiouscorrespondence demonstrating that position, and the fact that the Deputy Registrar had addressed this point and formally recognized theexistence of a consent. She noted that this consent had been signed byMr. K.J. Kinyanjui Advocate for the Plaintiff, M/s. Shah & ParekhAdvocates for the Defendant, but M/s Mungai & Gakuru Advocates forthe Third Party did not sign. There had been, however, a letter ofconfirmation from M/s. Mungai & Gakuru Advocates, dated 21st July,1998. Counsel further noted that M/s. Mungai & Gakuru though servedwith hearing notice for the Plaintiff's Notice of Motion of 5th March, 2004did not turn up in court; and that this should lead to the inference thatthey are not disputing the apportionment of liability as had been arrivedat by consent. Counsel remarked that the letter of consent was properlysigned and is a valid record of agreement between the parties. Counselsubmitted that the significance of the consent letter was not related somuch to the fact of its being filed in Court, as to the fact that it settled theposition as between the parties.

Mrs. Kambuni made a noteworthy submission regarding paragraph7 of the affidavit of Jomo Njoroge. This paragraph reads:

"THAT I am not aware and have not been aware of theexistence of any consent as claimed in the Notice of Motionaforesaid as the alleged executors M/s. Shah & ParekhAdvocates were acting on the instructions of my theninsurers Kenindia Assurance Company Limited which later repudiated liability against me before the alleged consentwas filed in Court." Counsel for the Plaintiff has submitted that the attempt to disownM/s. Shah & Parekh Advocates will not avail the Defendant, as they hadproperly acted on behalf of the Defendant in giving approval to theconsent on apportioning of liability. It will not be possible to repudiatethe consent duly given by M/s. Shah & Parekh Advocates because theywere ostensibly performing their proper professional function, and therewas no responsibility placed under the law on third parties to know howthe Defendant was, in point of fact, communicating with and relating toM/s. Shah & Parekh Advocates. I think counsel's submission in thisrespect is a convincing one. I, moreover, have my own doubts about thecandour of the Defendant's position in this matter. He has laid emphasison the fact that M/s. Shah & Parekh Advocates were also representingthe insurer, "which later repudiated liability against me before thealleged consent was filed in Court."Suppose then that therepudiation had taken place "after the ...consent was filed in Court.",would the Defendant now be ready to acknowledge that, indeed, therewas consent? From the overall tenor of his affidavit, I think theDefendant would still be arguing that there was only alleged consent but no true consent. On this basis I must hold that the fact of the consenthaving been filed or not filed in Court has no materiality; and I am inagreement with counsel for the Plaintiff that the significance of theconsent is that it represents a formally-recorded consensual positionbetween the parties. And once I take this position as I have done, Imust then specify the implication of such consent. The implication isthat, in determining the relationship between the parties, it must be heldthat there indeed was consenton the apportioning of liability. Thequestion of form,that the said consent was or was not filed in Court isimmaterial. This Court is guided in a proper case by principles of equity;and equity looks to the intent rather than the form.

4. Evidence of Consent onApportionment of Liability Annexed to Lucy Muthoni Kambuni's affidavit of 9th March, 2004 insupport of the Plaintiff's Notice of Motion aforesaid, is the followingcorrespondence expressing the consent to a 50% - 50% apportionmentof liability as between the Defendant and the Third Party:

(a) a joint letter of counsel written on the letter head of M/s.Shah & Parekh Advocates and dated 23rd November, 1994. This letter, captioned "HCCC No. 3022 of 1990, VERONICAMUMBI NGUGI v. JOMO NJOROGE" is addressed to the Deputy Registrar, High Court of Kenya, and it is duly signedby M/s. K.J. Kinyanjui & Co. Advocates for the Plaintiff andM/s. Shah & Parekh Advocates, on behalf of the Defendant.The content of the letter thus reads:

"We refer to the above mater and shall be obliged if you willkindly record by consent judgement for the Plaintiff againstthe Defendant liability at 50% and against the Third Party theremaining 50%."

(b) a letter by M/s. Shah & Parekh Advocates dated 16tn April,1999, addressed to M/s. Kambuni & Githae Advocates, and copied toM/s. Mungai Gakuru & Co. Advocates as the Advocates on record of theThird Party. The relevant paragraphs in this letter read as follows:

"Your predecessor had agreed to accept 50% [liability] fromus and the remaining 50% from M/s. Mungai & Gakuru'sclient...

"Kindly also quantify, keeping in mind that your client's claimis not covered by the contract of insurance, Defendantpersonally is liable."

(c) a letter from the Advocates for the Third Party, M/s.Mungai & Gakuru Advocates, dated 21st July, 1998 andaddressed to M/s. Kambuni & Githae Advocates for thePlaintiff. The relevant part of this letter shows the ThirdParty's consent; it reads:

"As regards liability, the same has previously beenapportioned on a 50:50 basis."

(d) a letter dated 19th October, 1993 from M/s. Shah &Parekh Advocates, addressed to M/s. K.J. Kinyanjui & Co.Advocates and copied to M/s. Mungai & Gakuru Advocates.The relevant portions of this letter thus reads:

"The liability between the Defendant and the ThirdParty herein has been apportioned in HCCC No. 1908of 1988 wherein 3rd Party is a second Defendant.

"By copy of this letter we are requesting M/s.Mungai Gakuru & Co. Advocates for the 3rd Party toconfirm the position."

From all the correspondence cited above, I think it cannot bedoubted that there was a real consent that liability was to be sharedbetween the Defendant and the Third Party, on a 50% - 50% basis. Iwould not allow the Defendant to resile from this consent, as thealternative would be to sanction duplicity and harmful dilatoriness in theconduct of Court business.

5. The Legal Status of Consent reached by AdvocatesOn the legal status of a consent reached between Advocates, Mrs.Kambuni brought to my attention certain passages in the Court ofAppeal case, Kenya Commercial Bank Ltd. v. Benjoh AmalgamatedLtd. & AnotherCivil Appeal No. 276 of 1997. The following passage, atpage 8, may be quoted:

"The respondents' case is that they did not instruct Mr.Meenye. We cannot see how he could have intruded intothe suit without being asked to do so... The extent ofauthority of a solicitor to compromise is set out in a passagein The Supreme Court Practice 1976 (Vol. 2), paragraph2013, page 620 as follows:

'Authority of Solicitor: a solicitor has a generalauthority to compromise on behalf of his client, ifhe acts bona fide and not contrary to expressnegative direction...No limitation of the impliedauthority avails the client as against the other sideunless such limitation has been brought to theirnotice...?'"

Counsel urged this principle to safeguard the position of theAdvocates, such as M/s. Shah & Parekh Advocates, who had executeda consent.

In her right of reply, Ms. Machio for the Defendant still maintainedthat there was no proper consent before the Court, as it was not filed inCourt and one signature was missing. She also contended that the 50%- 50% apportionment of liability was prejudicial to the Defendant whohad a good defence and so ought to be given a chance to be heard.

6. Consent Order on Two Cognate Cases - HCCC No. 3022of 1990 and HCCC No. 3021 of 1990

At the end of the hearing both counsel agreed that there is pendingbefore this Court another Chamber Summons application dated 26thMay, 2004 which is based on similar facts and which is subject to similargrounds of opposition as those filed in relation to the present application.Counsel recorded their consent that the decision in this application, inCivil Case No. 3022 of 1990 shall apply in the same way to the otherapplication which falls under Civil Case No. 3021 of 1990. I will, in thisrespect, record a consent Order,which will be governed by theprinciple enunciated by the Court of Appeal in Flora Wasike v. DestimoWamboko(1988) 1 KAR 625, P. 626 (per Hancox, JA)

"It is now settled law that a consent judgement or order hasa contractual effect and can only be set aside on groundswhich would justify setting a contract aside, or if certainconditions remain to be fulfilled, which are not carried out."

I do record this consent Order, subject to a mention and duerecording in the Court file for Civil Case No. 3021 of 1990; and theparties shall take a date at the Registry for such a recording of consent.

7. Analysis and Final Orders

What are the merits of the Defendant's application? In spite ofcertain serious shortcomings which I have analysed, in the Defendant'scase, he has maintained that he deserves an opportunity to be heard,because he believes he has a triable Defence. While the triability ofpleadings is a fundamental factor in their proceeding to trial, there arecertain limiting factors which may stop a set of pleadings in limine.Oneof these is where parties through their counsel are held to have reacheda consent on certain lines of disposal of the suit. As already remarked,any such consents acquire the force of contract and, except for goodcause, parties will not be allowed to resile therefrom. Contractualundertakings represent sacrosanct undertakings which the judicialprocess will invariably uphold, and when they have been reached, it isnot permissible for a party to depart from the obligations so created, byrelying on purely morally-based criteria.

It is quite clear to me that counsel having the conduct of the mainsuit for the individual parties had reached a consent, to the effect thatliability would be borne on a 50% - 50% basis by the Defendant and theThird Party. The Defendant's various pleas now, that he had alwayswanted to defend against the suit, and that he has a triable Defence, are not at this stage permissible, and it is of no materiality in this respect thatthe Advocates who executed the consent on his behalf were not entirelyto his liking.

Besides, the Defendant has not shown good cause for havingfailed to appear in Court and to contest the Plaintiff's Notice of Motion of5th March, 2004 which led to the Orders now being impugned by theDefendant. As I have already shown, the depositions relied on by theDefendant to justify the present application are not in all respectstruthful. I must conclude, in these circumstances, that no basis exists forgranting the application by Chamber Summons dated 26th May, 2004.

Accordingly I will make the following Orders which, by consent,will apply in both Civil Suit No. 3022 of 1990 and Civil Suit No. 3021 of1990, subject to a proper record of the same being made in the Courtfile for Civil Suit No. 3021 of 1990:

1. The prayer that this Court do set aside and/or review its Ordersmade on 30th April, 2004 and all consequential Orders arisingthere from, is refused.

2. The prayer that the Defendant be allowed to file and prosecute adefence against the Plaintiff's Notice of Motion dated 5th March,2004 is refused.

3. The Defendant shall bear the costs of this application.

DATED and DELIVERED at Nairobi this 17th day of September, 2004.

J. B. OJWANGAg. JUDGE

Coram: Ojwang, Ag. J.,

Court Clerk: Mwangi

For the Defendant/Applicant: Ms. L.A. Machio, instructed by M/s.

Mbigi Njuguna & Co. Advocates

For the Plaintiff/Respondent: Mrs. L.M. Kambuni, instructed by M/s.

Kambuni & Githae Advocates.

Third Party unrepresented