REPUBLIC OF KENYA

IN THE SUPREME COURT OF KENYA AT NAIROBI

(Coram: Mwilu; Ag. CJ & Ag. P, Ibrahim, Wanjala, Njoki & Lenaola, SCJJ)

PETITION (APPLICATION) NO. 46 OF 2019

BETWEEN

HOUSING FINANCE COMPANY OF KENYA LIMITED......1ST APPELLANT

WATTS ENTERPRISES LIMITED............................................2ND APPELLANT

AND

SHAROK KHER MOHAMED ALI HIRJI                                                                

(Sued as attorney for FIROZE NURALI HIRJI..............................RESPONDENT

FIROZE NURALI HIRJI .....................................................................APPLICANT

(Being an application to seek review of the Order of the Supreme Court of Kenya (Lenaola SCJ) of 25th of September 2020)

RULING OF THE COURT

[1]  On the 25th of September 2020, this Court, (Lenaola, SCJ) adopted as an Order of this Court, a Consent dated 10th of September 2020, marking Petition of Appeal No. 46 of 2019 as settled. It was noted that on record, there was a letter by Taib A Taib Bajaber, Advocate, who is not a party to the proceedings, but was opposed to adoption of the Consent Order.

[2]  The Applicant, Firoze Nurali Hirji, in his Notice of Motion Application dated 1st  October 2020, and filed on 13th  October 2020, supported by his affidavit deponed on 1st of October 2020, and in his submissions filed on 1st October 2020, and supplementary submissions dated 22nd October 2020, seeks the following orders:

i.  An interim stay of enforcement of the consent order dated 10th September 2020, as adopted by this Honorable Court on the 25th of September 2020 as against the 1st Appellant and its agents.

ii.  That the Consent order dated 10th September 2020 and adopted by this Court on the 25th of September 2020 be set aside.

iii. That the 1st Appellant’s Petition/Appeal No. 46 of 2019 filed in this Court be struck out with costs for want of jurisdiction.

iv. That stay of execution of the Court of Appeal’s Judgment pending Petition/Appeal granted by this Honorable Court be lifted.

v.   That costs of this Application be provided for.

[3] In his submissions, the Applicant reiterates the grounds of his application and states that the subject consent was entered into without his knowledge yet he is the principal under the Power of Attorney whose proprietary interests are at the risk of being substantially prejudiced. He states that he only learnt about the Consent after the fact, and on this ground it ought to be vitiated.

[4] Secondly, he urges that the Court ought to have independently satisfied itself of its jurisdiction over the entire subject matter/dispute before making a determination as to whether or not to adopt the Consent, as it did, on the 25th of September 2020.

[5]  Citing Phoenix of EA Assurance Company Limited v S.M Thiga t/a Newspaper Service [2019] where the Court found a nullity all orders emanating from a suit filed in a court devoid of jurisdiction, he argues that this Court ought to have been satisfied that it had jurisdiction to make the consent order, and as it is his case that the Court lacks jurisdiction, it follows that the consent order is null and void.

[6]  Citing Republic vs Procurement Administrative Review Board Ex- Parte Symphony Technology Limited (Kenya) & 2 Others [2016] eKLR, he argues that a donee only acts on behalf of the donor and a case in a suit always belongs to the donor or principal who is entitled at law to bring legal proceedings.

[7] The Applicant submits that he neither seeks to re-litigate the issue determined by the Court in its Ruling of 4th September 2020 (when it declined to determine the question of representation for want of jurisdiction), nor to be declared a substantive party in the matter but rather, he contends that he is a substantive party who ought to have been consulted in the consent.

[8] In opposing the application, the 1st and 2nd Appellants filed a replying affidavit deposed by Regina Anyika, the Company Secretary and Director of Legal, Housing Finance Company Limited, sworn on 15th October 2020 filed on 19th of October 2020.

[9]  The Application is also similarly opposed by the Respondent Sharok Kher Mohamed Ali Hirji vide a Replying Affidavit sworn on 15th October 2020 lodged on 16th of October 2020.

[10]  It is the case of both Appellants and supported by the Respondent) that the Applicant is a stranger to these proceedings; that he is not a proper party in these proceedings, as he was also not party to the proceedings either at the High Court or the Supreme Court, and therefore, they argue that he does not have the right to appear either in person or through his duly appointed representative to make an application for review.

[11] They contend that this current application introduces novel facts, namely, the dispute between the Applicant and the respondent on the power of Attorney, upon which no evidence has been led nor determination made in the courts below, and that the only option in this instance would be fresh action in an appropriate court. Additionally, that where a party wishes to set aside a consent judgement, there are only two options, review or a fresh action as held in Flora N Wasike v. Destimo Wamboko [1988] eKLR.

[12] Citing this Court’s decision in Geoffrey M Asanyo & 3 Others v Attorney General [2018] eKLR, is the Appellants submit that the issues about the consent are being raised by a person who was not a party to the Consent Order, and the principle of privity of contract means that the rights and obligation of a contract, as the case may be, can only be enjoined or enforced by the parties to the same.

[13] Further, they cite the Canadian Supreme Court’s case in Rick v Brandsema 2009 SCC 10 where that court stated that a consent judgement is not a judicial determination on the merits of a case but only an agreement elevated to an order on consent, which they submit means that once a party has compromised the matter by consent, the Court has no power to go behind and enquire if the Court had jurisdiction to entertain the underlying dispute.

[14] They conclude by urging that this Application is an abuse of the court process, as the orders sought are largely similar to those in the previous application in the appeal.

[15]  Having considered submissions from all parties, we observe that it is not in dispute that this Court’s decision (Maraga, CJ & P, Mwilu DCJ & VP, Ibrahim, Wanjala, Njoki, SCJJ) delivered on the 4th of September 2020, declined to delve into the issue of the proper representative of the principal, as in doing so, would be making a factual finding, which the Court did not have the requisite jurisdiction to do. Having done so, the proper parties to the suit at the time of that decision remained Housing Finance Company Kenya, Watts Enterprises Limited and Sharok Kher Mohamed Ali Hirji. The Applicant was not a party in that matter.

[16]   Consequently, and as a result of that 5-bench decision of this Court, the parties to the suit, entered into a Consent before Lenaola SCJ, in which they agreed to compromise the entire suit by a Deed of Settlement dated 11th December 2019, marking Petition No. 46 of 2019 as settled.

[17] We are persuaded the High Court’s decision in in Kenya Commercial Bank Ltd vs Specialised Engineering Co. Ltd [1982] KLR 485, where Harris, J held, inter alia, that -

“1. A consent order entered into by counsel is binding on all parties to the proceedings and cannot be set aside or varied unless it is proved that it was obtained by fraud or collusion or by an agreement contrary to the policy of the court or where the consent was given without sufficient material facts or in misapprehension or ignorance of such facts in general for a reason which would enable the court to set aside an agreement.

2. A duly instructed advocate has an implied general authority to compromise and settle the action and the client cannot avail himself of any limitation by him of the implied authority to his advocate unless such limitation was brought to the notice of the other side.”

[18]  The Applicant is neither a party to previous related proceedings before this Court, and even then, he has not shown that the consent was based on fraud, collusion or by an agreement contrary to the policy of the Court given without sufficient material facts or in misapprehension or ignorance of such facts in general for a reason which would enable the Court to set aside an agreement.

[19] Furthermore, the Applicant is not disputing that the respondent was a holder of the power of attorney and instituted the suit from the High Court to the Court of Appeal resulting in several decisions of the given Courts. However, he challenges extent, nature and validity of such power and consequent authority to deal with the matter. This is a factual dispute that cannot be resolved by this Court.

[20] We are therefore unable to find merit in his application and move to dismiss it, and consequently make the following orders:

(i)  The Notice of Motion dated 1st October 2020 and filed on 13th October 2020 is hereby dismissed.

(ii)   The Applicant shall bear the costs of the application.

DATED AND DELIVERED AT NAIROBI THIS 24TH DAY OF MARCH 2021

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P. M. MWILU
Ag. CJ &Ag. P, SUPREME COURT

……..……………………………

M. K. IBRAHIM
JUSTICE   OF   THE   SUPREME COURT

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S. C. WANJALA

JUSTICE OF THE SUPREME COURT

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NJOKI NDUNGU

JUSTICE OF THE SUPREME COURT

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I. LENAOLA
JUDGE OF THE SUPREME COURT