Case Metadata |
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| Case Number: | Civil Suit 496 of 1988 |
|---|---|
| Parties: | Randu Nzau v Mbuni Transport Company Ltd |
| Date Delivered: | 18 May 1989 |
| Case Class: | Civil |
| Court: | High Court at Mombasa |
| Case Action: | Ruling |
| Judge(s): | Samuel Elikana Ondari Bosire |
| Citation: | Randu Nzau v Mbuni Transport Company Ltd [1989] eKLR |
| Advocates: | Mr Mburu for the Applicant, Mr Paul Kiambo for the Respondent |
| Court Division: | Civil |
| Parties Profile: | Individual/Private Body/Association v Individual/Private Body/Association |
| County: | Mombasa |
| Advocates: | Mr Mburu for the Applicant, Mr Paul Kiambo for the Respondent |
| Case Summary: | Randu Nzau v Mbuni Transport Co Ltd High Court, at Mombasa May 18, 1989 Bosire J Civil Suit No 496 of 1988 Evidence – admissions – doctrine of without prejudice – ambits and rationale of the doctrine – whether admissions which parties did not intend to be adduced in subsequent proceedings are admissible – whether pretrial negotiations can be resiled – Evidence Act (Cap 80) section 23. Judgment – consent judgment – nature of such a judgment – whether parties to a consent judgment can challenge it later. The plaintiff applied for judgment based on a figure allegedly arrived at after out-of-court negotiations. This was provoked by the fact that the defendant had later resiled from the settlement. The defendant raised a preliminary objection and contended that the application for judgment was not competent as it was grounded on without prejudice correspondence which was inadmissible. The plaintiff submitted that the principal question was whether the without prejudice correspondence were discoverable in a civil suit. It was further submitted that the without prejudice doctrine has no legal sanction particularly under the Evidence Act (Cap 80). Held: 1. It is the policy of the law that disputes should be amicably settled, and where possible, parties should be at liberty to freely admit certain facts to facilitate a settlement without the fear of such facts being used against them in subsequent proceedings if the attempt to settle is not successful. The privilege is a rule of evidence which stems from public policy. 2. Being a rule of evidence, the without prejudice doctrine must not be taken to be confined to discovery alone. Nor can it be treated to apply only in cases where an attempted settlement is unsuccessful. 3. The rationale of the without prejudice doctrine is to encourage parties to a dispute to engage in pre-trial and out-of-court settlements without fear that admissions of certain facts would be used against them to their prejudice. 4. Section 23 of the Evidence Act (Cap 80) renders as inadmissible admissions which the parties either by an express condition or by implication, did not intend to be adduced in subsequent proceedings. 5. Section 23 of the Evidence Act (Cap 80) accords protection to any pretrial admissions made without prejudice unless the consent of the other party or parties to it is first obtained. 6. The effect of section 23 of the Evidence Act (Cap 80) is to place a party who entered into pre-trial negotiations at liberty to resile before judgment is entered. 7. In general terms, a judgment entered into on the basis of pre-trial negotiations is a consent judgment. Such judgment is in the nature of an agreement binding both sides. 8. Once a consent judgment is entered, parties to it will be estopped from challenging such judgment later, unless on grounds which would vitiate a contract. Preliminary objection sustained. Cases Rush & Tompkins Ltd v Greater London Council [1988] 3 All ER 737; [1989] AC 1280; [1988] 3 WLR 939, HL Statutes 1. Civil Procedure Rules (cap 21 Sub Leg) order XXIV rule 6 2. Evidence Act (cap 80) section 23 Advocates Mr Mburu for the Applicant. Mr Paul Kiambo for the Respondent. |
| History Advocates: | Both Parties Represented |
| Case Outcome: | Preliminary objection sustained |
| Disclaimer: | The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information |
REPUBLIC OF KENYA
IN THE HIGH COURT AT MOMBASA
CIVIL SUIT NO 496 OF 1988
RANDU NZAU ……………..…………….….. APPLICANT
VERSUS
MBUNI TRANSPORT CO LTD…....….….. RESPONDENT
RULING
By a motion on notice dated 15th March, 1989, the plaintiff applied for judgment for Kshs 135,230/- under order XXIV rule 6 Civil Procedure Rules. The figure was allegedly arrived at after out of court negotiations with a view to settling the suit without a trial. The defendant’s counsel allegedly later resiled from the settlement. The above application was thereby provoked.
The motion first came for a hearing on 25th April, 1989. Mr Mburu appeared for the applicant, while Mr Paul Kiambo appeared for the respondent, the defendant in the action. Mr Kiambo did not think the application was competent. He raised a preliminary point that it was grounded on inadmissible without prejudice correspondence. He did not readily have authority to buttress his objection. So he requested for time to conduct a research on the matter. He was allowed time up to 4th May, 1989, when the application next came for a hearing. He came up with a very recent English case of Rush & Tompkins Ltd v Greater London Council and Another [1988] 3 All ER 737. It was a case in which discovery of correspondence forming part of out of court negotiations was prayed for by a stranger to the negotiations. The House of Lords held that without prejudice correspondence exchanged with the object of effecting a compromise in the action was privileged. Accordingly none of the parties to it or any other person would adduce them in evidence in subsequent proceedings without the consent of the parties to it.
Mr Mburu was of the view that the case was distinguishable on its own facts. It was his submission that the principal question in the case was whether the without prejudice correspondence were discoverable in a civil suit. Mr Mburu appears to have overlooked the fact that privilege is a rule of evidence. It stems from public policy. It is the policy of the law that disputes should be amicably settled, where possible, and parties be at liberty to freely admit certain facts to facilitate a settlement without the fear of them being used against them in subsequent proceedings in the event of the attempt to settle not being successful. The without prejudice doctrine being a rule of evidence must not, to my mind, be taken to be confined to discovery alone. Nor can it be treated to apply only in cases where an attempted settlement is unsuccessful. The rationale of the doctrine is to encourage parties to a dispute to engage in pre-trial and out of court settlements without the fear that admissions by them of certain facts would be used against them to their prejudice.
Mr Mburu’s second argument was that the doctrine has no legal sanction particularly in the Evidence Act, Cap 80 Laws of Kenya. Mr Mburu’s attention must have escaped the provisions of S 23 of the Act. The marginal note to the section reads:
“Admissions made without prejudice in civil case”.
The section makes inadmissible a certain crop of admissions which the parties by either an express condition or by implication did not intend that evidence thereof be adduced in subsequent proceedings. The marginal note describes those as without prejudice admissions. By the rules of construction the marginal note must be read with the body of the section. It then follows that the section accords protection to any pre-trial admissions made without prejudice unless the consent of the other party or parties to it be first obtained.
The effect of the provisions above is that a party who enters into pre-trial negotiations which culminate in a settlement is at liberty to resile before judgment is entered. Once a judgment is entered then he would be estopped from challenging it later unless on grounds which would vitiate a contract. I say so because in general terms a judgment entered into on the basis of pre-trial negotiations and settlement is a consent judgment. Such judgment is so to speak in the nature of an agreement and binds both sides. Such stage had not been reached in this matter. The result of the foregoing is that the without prejudice correspondence which the applicant annexed to his supporting affidavit is inadmissible.
Accordingly the preliminary objection succeeds. The correspondence must be and are hereby expunged.
Order accordingly.
Dated and Delivered at Mombasa this 18th Day of May, 1989
S.E.O. BOSIRE
……….......…..
JUDGE
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