Abucheri v Stephen [2022] KEHC 15572 (KLR)

Abucheri v Stephen (Civil Appeal 19 of 2018) [2022] KEHC 15572 (KLR) (14 November 2022) (Directions)

Neutral citation: [2022] KEHC 15572 (KLR)

Republic of Kenya

In the High Court at Kakamega

Civil Appeal 19 of 2018

PJO Otieno, J

November 14, 2022

Between

Timothy Abucheri

Appellant

and

Khalwala Opara Stephen

Respondent

Directions

1. It is on record that on the January 15, 2019 the advocates for the parties filed a consent to mark the appeal settled on unequivocal terms. The consent was minuted in the files for ministerial action by the Deputy Registrar pursuant to Order 49 (2) (b) and (c) Civil Procedure Rules. When the file was placed before the Deputy Registrar, it was ordered that it be mentioned before the court to adopt the consent.

2. The law donates power to the DR to enter Judgment by the consent of the parties. It is not the duty of the judge to usurp the powers. Even where there is doubt as to the accuracy or authenticity of the consent, it should be the task of the Deputy Registrar to handle such.

3. It is the spirit of article 159 (2) c that parties be allowed to be in charge of their dispute and to retain the power to terminate or mitigate the dispute by consent. Once a consent is entered and reduced into writing, the court has no power to postpone it and force the parties to remain in dispute against their wish. Of course a consent may be declined by the court if it take the form of void contract, but that is a judicial discretion exercisable by the Deputy Registrar exercising the special powers donated to that office.

4. Here the court has improperly implied a dispute between the parties by keeping the appeal live since January, now for a period of more than 3½ years, when those parties are home assured that their dispute was settled by an agreement. That should not be expected of the court.

5. It is therefore the direction of the court that consents by parties be minuted by the Registry and endorsed by the Deputy Registrar and where there is a clarification or confirmation to be made by parties to such a consent that be done before the Deputy Registrar and not by the file, routinely and as a matter of course, being listed before the court to do the ministerial and special powers legally due for execution by the Deputy Registrar. Where however one of the parties denounce the consent and it becomes necessary to determine the genuineness or otherwise of the consent, matter may be placed before the court.

Dated, signed and delivered at Kakamega, this 14th day of November 2022. PATRICK J. O. OTIENOJUDGE