|Civil Appeal 201 of 2008
|SANGANYI TEA FACTORY CO. LTD v EVANS ONDIEKI NYOKWOYO
|31 Mar 2011
|High Court at Kisii
|Milton Stephen Asike-Makhandia
|SANGANYI TEA FACTORY CO. LTD v EVANS ONDIEKI NYOKWOYO  eKLR
|(Being an appeal from the Ruling of the Hon. Mrs. L. Koming’oi Senior Resident Magistrate at Nyamira, in CMCC No. 153 of 2007 delivered on 18th November, 2008)
|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
IN THE HIGH COURT OF KENYA
CIVIL APPEAL NO. 201 OF 2008
SANGANYI TEA FACTORY CO. LTD ...................................................................................... APPELLANT
(Being an appeal from the Ruling of the Hon. Mrs. L. Koming’oi Senior Resident Magistrate at Nyamira, in CMCC No. 153 of 2007
delivered on 18th November, 2008)
The appellant was duly served with summons to enter appearance on 19th November, 2007. However, it neither entered appearance nor filed a defence to the claim. By a request for judgment dated 14th December, 2007 and filed in court on the even date, the respondent sought albeit successful for entry of interlocutory judgment against the appellant. On 20th December, 2007, the court duly acted on the request and entered interlocutory judgment against the appellant.
The suit was thereafter set down for assessment of damages. The hearing on the assessment of damages was slated for 18th June, 2008. In a reserved judgment delivered on 14th August, 2008, the trial court assessed the general damages payable to the respondent at kshs. 80,000/= less 50% contribution and special damages of kshs. 6,500/=. The following day, the respondent served on the appellant with the Notice of entry of judgment.
The contention of the appellant is that it complied fully with the terms of the consent order aforesaid. On the other hand it is the contention of the respondent that the appellant violated the consent and pursuant to the default clause he commenced the execution of the decree. It was then that the appellant was constrained to file an application dated 7th November, 2008 seeking to consolidate SRMCCC No. 153 of 2009 with SRMCCC No. 152 of 2007, an order of stay of further execution of the decree against the appellant’s motor vehicle KAT 976Y and extension of time within which to file its defence. Finally, it also sought to have the attachment so far levied to be declared illegal, null and void.
In response to the application, the respondent swore an affidavit in which he deponed where pertinent that the application was an abuse of the court process, not made in good faith, lacked merit and was totally misconceived. The appellant had not exercised due diligence nor had he placed all the true facts before the court. It was therefore undeserving of the exercise of the court’s discretion in its favor. The consent order was specific in nature on the requirements expected of the appellant. The appellant did not meet those requirements in time as the appellant’s cheque dated 9th October, 2008 was received in the respondent’s advocates chambers on 4th November, 2008 and when the advocate’s secretary declined to receive the same, the appellant’s advocate’s clerk threw the envelope containing the same on the table and went away. The respondent then returned the said cheque to the appellant’s advocates by Nation Courier Services.
The learned magistrate heard the parties on the application on 14th November, 2008 and in a reserved ruling delivered on 18th November, 2008, she dismissed the application with costs essentially holding that the appellant did not comply with the terms of the consent order. Neither the cheque for the thrown away costs nor defence was delivered, filed and served in time as contemplated by the consent order. Indeed the court delivered itself thus
“… the defendant having not fulfilled the above conditions the plaintiff had no choice but to go ahead with execution. I find that this court had no jurisdiction to vary the consent order dated 2nd October, 2008 this consent can only be set aside by another consent … I find that the defendant deserves no mercy from this court. They chose not to comply with the consent order. I find no merit in this application and the same is dismissed with costs…”.
“1. The learned magistrate erred both in fact and law by failing to find that she had no (sic) jurisdiction to vary the consent order filed by parties.
3. The learned magistrate erred both in law and fact by failing to find that the consent order compromised the interlocutory judgment and thus no execution could be lawfully undertaken unless and until the judgment is entered afresh.
5. The learned magistrate erred both in law and fact by failing to hold that the appellant is in the circumstances entitled to orders sought.
On 30th November, 2010, Mr. Nyachae and Mr. Nyagwencha, learned counsels for the respondent and appellant respectively recorded a consent to the effect that the appeal be canvassed by way of written submissions. Subsequently those submissions were filed and exchanged. I have carefully read and considered them alongside cited authorities.
A consent order is like a contact. It binds the parties to it and can only be varied or set aside by another consent between the same parties or by court upon application and proof of same grounds as would justify the setting aside of a contract; like fraud, mistake, misrepresentation or if it is against public policy. What the appellant did after it was caught up by the time lines in the consent order amounted to a variation of the initial consent order. It delivered the cheque outside the agreed period. Similarly it filed the defence out of time. As stated in the case of Munyiri –vs- Ndungunya “… The remedy that was open to the parties was to set aside the consent order either by review or by the bringing of a fresh suit as a court can only interfere with a consent judgment in such circumstances as would afford a good ground for varying a contract between parties…”. If there was subsequent mutual agreement between the parties as claimed, that mutual understanding cannot replace a consent duly adopted as an order of the court. Parties should have sought the variation or setting aside of the said consent order before they could be bound by the subsequent arrangement whether oral or written. It is not the duty of the court to re-write the consent orders for the parties. The duty of the court is limited to enforcing such consent orders unless and until they are reviewed, varied, altered and or set aside. As stated by the court of appeal in Nation Media Group Limited –vs- Busia Teachers Co-operative Credit and Savings Society Limited and Another (2010) eKLR, the terms of a consent order cannot be altered by court and it is prejudicial upon the parties to a consent order for it not to be followed to the letter.
Judgment dated, signed and delivered at Kisii this 31st day of March, 2011.