Isaac Kamau Ndirangu v Commercial Bank of Africa

High Court, at Nairobi

October 8, 2002

Oguk J

Civil Case No 1803 of 1985

Consent Judgments – setting aside consent judgments – grounds for setting aside – circumstances under which a court will interfere with consent judgments – circumstances affording a good ground for varying or rescinding a contract

Civil Practice and Procedure - review – applications for review – grounds for such application – circumstances that must be proved for application to succeed.

The parties entered into a consent judgment. The applicant later made an application, the subject of this ruling, to have the consent judgment set aside and reviewed.

Held:

1. It is well settled law that a consent judgment can only be set aside on the same grounds as would justify the setting aside of a contract, for example, fraud, mistake or misrepresentation.

2. An application for review can only succeed if the applicant proves an error or mistake apparent on the face of the record, discovery of new evidence or any sufficient reason.

3. An application for review on the ground of new evidence will succeed only if the applicant proves that he did not have it in his possession at the time and could not have obtained it despite due diligence.

4. The applicant had not satisfied the court that there was an error or mistake on the face of the record.

5. There was no other sufficient reason to warrant the review sought or the setting aside of the consent judgment.

Application dismissed

Cases

1. Wasike v Wamboko (1982-88) 1 KAR 625; [1988] KLR 429

2. Purcell v FC Trigell t/a Southern Window and General Cleaning Co & another [1970] 3 All ER 671

3. Brooke bond Liebig (T) Ltd v Mallya [1975] EA 266

 4. Shah v Dharamchi [1981] KLR 560

 Statutes

1. Civil Procedure Rules (cap 21 Sub leg) order XLIV rule 1; order L rule 1

 2. Civil Procedure Act (cap 21) section 3A

Manchester Outfitters Suiting Division Ltd & another v Standard Chartered Financial Services Ltd & another

Court of Appeal, at Nairobi

October 4, 2002

Tunoi, Lakha & Owuor JJ A

Civil Appeal No 88 of 2000

(Appeal from the judgment and decree of the High Court at Nairobi (Githinji J) dated 30th July 1999 in HCCC No 5002 of 1990)

Judgment– delivery of judgment – delay in delivery of judgments – inordinate delay – inexcusable and unjustified delay – whether delay vitiates a judgment – when delay occasions a failure of justice.

Company Law - receivers – appointment of receiver – appointment of receiver where there is no valid debenture – whether absence of debenture renders appointment of receivers null and void.

Debenture – validity requirement of a new debenture to cover a fresh agreement – whether correspondence and documents between parties can create a debenture.

Damages – pleading damages – failure to plead special damages – failure by trial court to assess damages – circumstances in which the appellate court may assess damages.

The appellants had filed a suit in the High Court seeking inter alia, a declaration that the appointment of the receivers by the 1st respondent Bank pursuant to a debenture was invalid. The1st respondent bank, on the other hand, sought a declaration that the debenture dated 5th April 1982 issued by the appellants to it was valid and subsisting as security for the indebtness of the appellant. The High Court dismissed the suit giving rise to this appeal by the appellants. The appellant challenged the validity of the debenture which was the basis for the appointment of receivers.

Held:

Tunoi JA dissenting

1. A delay of five years in delivering a judgment is clearly inordinate and increases the stress and anxiety caused by litigation. It also weakens public confidence in the whole judicial process.

2. A delay in delivering judgment does not vitiate a judgment. 3. The vice in a delayed judgment is not the mere fact of delay, but when the delay involved is not satisfactorily explained or it occasions failure of justice if, for example, the trial judge denies himself the opportunity the impression a witness makes or loses the advantage of immediacy.

 4. In the instant case there is no explanation or account for such an inordinate delay to justify it or render it excusable.

5. In the absence of a new duly executed debenture no receiver can be legally appointed by the Bank over the plaintiff’s companies, hence the appointment of the receiver was illegal, null and void.

6. The fresh agreement entered into by the parties required a new debenture to put in place machinery to enable the terms thereof to be enforced. 7

. Correspondence and documents between parties do not create a debenture, a debenture can only be created by a legal document requiring execution, stamping and registration.

8. No estoppel can be created against the statute if a debenture requires as in this case to be registered according to the law.

9. It is always desirable in a suit for damages for the trial judge to make a finding as to the amount to which he thinks the plaintiff would be entitled if successful, even though he gives judgment for the defendant.

10. It is a general principle that damages are assessed once and for all at the time of the trial even though the plaintiff may subsequently suffer greater or lesser loss than anticipated, and an Appellate Court has power to receive further evidence, particularly of matters which have occurred after the date of the trial.

11. The general principle is that the Appellate Court should not assess damages but instead it should remit the case to the High Court for assessment of damages.

12 The Appellate Court may assess damages where there are other compelling reason not to remit the case such as where:

a) it will entail a further long trial of several years with unjust delay and the case is already more than twelve years.
b) the parties will suffer further punishment in stress, time and expense
c) part of the record has clearly gone missing with the memory of witnesses and or parties faded or likely to have faded.
d) the events of the litigation are close to 20 years old with no likelihood of a truly just decision being reached.
e) it would no longer be just to remit the case to the superior court for assessment of damages as little or no purpose is left since the land and all machinery, subject of trial and receiverships have already been sold leaving no possible assistance.

13. (Per Tunoi JA, dissenting) “It is rare and exceptional for a final Appellate Court to assess damages in a situation like this where it is obvious that the respondents would have the opportunity of an appeal and yet it is faced with a huge crippling award. This court should not undertake the assessment especially in the particular circumstances of this case”.

Appeal allowed, decree of the Superior Court set aside.

 Cases

1. Rolled Steel Products (Holdings) Ltd v British Steel Corp [1985] 3 All ER 52; [1986] Ch 246; [1985] 2 WLR 908

2. Bishopsgate Investment Management Ltd (in prov Liq) v Maxwell [1993] BCC 120; [1992] 2 All ER 856

3. Barangaza, Elizabeth v Tyson Habenga Civil Appeal No 285 of 1997

4. Gardner v James [1998] 2 All ER 1069; 65 TLR 36; 92 SJ 732

5. Selle v Associated Motor Boat Co Ltd [1968] EA 123

6. Curwen v James [1963] 2 All ER 619; [1963] 1 WLR 748

7. Jenkins v Richard Thomas & Baldwins, Ltd [1966] 2 All ER 15; [1966] 1 WLR 476

8. Murphy v Stone Wallwork (Charlton) Ltd [1969] 2 All ER 949; [1969] 1 WLR 1023

Statutes

No statutes referred.

Advocates

Mr Nowrojee for the Appellants

Mr Le Pelley for the Respondents