Anura Perera v Nation Media Group Limited, Wangethi Mwangi & oseph Odindo [2015] KEHC 528 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE NO.  101 OF 2006

ANURA PERERA ……………………..….……………...PLAINTIFF

VERSUS

NATION MEDIA GROUP LIMITED ....……..…….1ST DEFENDANT

WANGETHI MWANGI………………………….....2ND DEFENDANT

JOSEPH ODINDO………………………………..3RD DEFENDANT

RULING

Vide  a consent  order of  the court between  the  parties’  advocates, Honourable Waweru  J did on 2nd October  2014  record as follows:-

“Order: By consent the chamber summons dated 30th March 2006 be settled upon the following terms;-

The plaintiff  do deposit  the sum of  kshs 500,000/- as security for the defendant’s costs  in a joint interest  earning account in the names  of the parties’  advocates  at Equity Bank Ltd, Kilimani Branch.

The said deposit be made within 30 days of today.

In default of such deposit the suit shall stand dismissed with costs to the defendants.

Costs of the application shall be in the cause.”

The  plaintiff’s counsel  did not  meet  the timelines given and on February 2015  they wrote to the  defendant’s  counsel, explaining that  the default  to meet  the timelines  was due to the fact that the advocate  who  held brief  on 2nd October 2014  omitted  to note on the file  that there  was  a timeline within which  the deposit  was to be made.  They   sought indulgence to extend the period so that payment could be regularized without the necessity of seeking out the court to extend the time.

The above correspondence  was  after the defence  lawyers  received  a cheque late  and maintained  that the  plaintiff’s  correspondence had been  overtaken   by events. The plaintiff only managed to send the cheque and completed bank forms and documentation to the defendant’s counsels on 5th January 2015.

It is  he above background  that is the basis  for the application dated  24th  February 2015 by the plaintiff seeking for enlargement  of time within which the  order of 2nd October 2014  should be  complied with.

The application was brought under  the provisions of  Section 95  of the Civil Procedure  Act and  Orders  26 Rule  5(2), 50,Rule 6 and  51 Rule  1 of the Civil Procedure Rules. The applicant relied on the grounds that  the  delay to provide  security within 30 days  from the date of consent order was not as  a result of the plaintiff’s  mistake or omission, that he was not made  aware of the timelines  that the order provided  as the advocate who attended court omitted  to record the timelines on the file, the said  advocate did not  inform the  plaintiff’s advocate  that security  was supposed to be deposited  within 30 days, and that   the delay  and failure to deposit  security for costs  timeously  was because Mr Muin Malik  who was signatory  to the joint account  was consistently  out of the office  for a greater  part of the second half of last year.  The application was further supported by the affidavit of Henry Asugah Ongicho replicating the grounds and annexing correspondences between the parties’ advocates.  Mr Ongicho deposed that he was involved  in the negotiations  for the settlement of the defendant’s  application for security  for costs dated  30th March 2006 and which  negotiations  were with Wanjiru Ngige  the defendant’s counsel  culminating  in an agreement  that  resulted  in a consent order  being  recorded  in court on  2nd October 2014.  However, that on the  material date, he   send one Brenda Nziwa Nandwa  a newly admitted advocate  from  their office  to hold  his brief  to  record the  said consent  as had  already been agreed  between  the parties which she  did.  That regrettably, the said advocate neither noted the  timelines given  in the order nor  did  she notify the senior  advocate  of what  had transpired and  that  on 15th November 2014, completely  unaware  of those  timelines the applicants’ advocates  purchased a banker’s cheque  in the joint names of the law  firms representing both parties in the suit  but that   for 2 months, the signatory to the joint account to be opened  Mr Muin Malik  was largely overseas and unavailable  to sign the account  opening  forms and it was not until  5th January 2015  that they forwarded  the banker’s cheque together with those  accounts  opening  forms duly  executed  to the defendants’  advocates  and that  is when  they were reminded by letter  of 16th January 2015 that time had lapsed  and despite indulgence  sought, the defence  counsels  were not  willing  to indulge the  plaintiff’s counsels on the matter  hence  this application.  The plaintiff’s counsels also attributed that delay to the closure of their offices between mid December 2014 to 5th January 2015.

The defendants  opposed the  application for enlargement of time  and filed a preliminary objection dated 25th May 2015  contending that the suit stood dismissed as at 3rd November 2014  and therefore  the court  had no jurisdiction to hear or grant the orders  sought  in the application.

The parties’ advocates agreed to dispose of the application by way of written submissions.  The plaintiff filed his on 10th June 2015 whereas the defendants filed theirs on 24th June 2015.

According to the defendant’s preliminary objection, the consent stands and the parties are bound by it.  In their view, the plaintiff is seeking to appeal against the consent order which is prohibited by Section 67(2) of the Civil Procedure Act.  In their view the court cannot disregard the consent between the parties and enlarge time contrary to the terms agreed and contained in that consent.

Further, that the suit stood dismissed upon default hence no further action was required of the defendant in the event of the plaintiff’s default.

The defendants  maintained that  a consent  can only be set  aside on the same  grounds as would justify the  setting aside of a contract   i.e. fraud, mistake  or  misrepresentation, as was  held in the binding  authority of Flora N. Wasike V Destimo Wamboko KAR [1982-1988]. The defendants also  submitted  that the court  cannot enlarge  time since the parties  agreed on  the consequences  of the plaintiff’s default  in complying  with the terms  of the consent  hence, since the  suit stands dismissed , as there  is  no application to reinstate  it or to set aside  the consent, the court is functus officio.  Further, that the plaintiff was urging the court to alter the terms of the consent contrary to the established principles of law set out in the Flora Wasike V Destimo Wamboko (supra) case.  They also submitted that the powers of the court to extend time cannot apply where there is consent.  The defendants also relied on Gateway Insurance Company Ltd V Aries Auto Sprays [2011] e KLR where an application to extend time set by consent was denied. The defendants urged the court to dismiss the plaintiff’s application for enlargement of time as it lacked jurisdiction to do so.

The plaintiff’s submissions mirror the supporting affidavit of Henry Asugah Ongicho and the grounds in support of the application. On the applicable law, the plaintiff’s  counsel submitted that under  order 26 Rule 5(1)  of the Civil Procedure  Rules, the suit could  only be  dismissed  upon an application  being made  by the defendants that there had been default otherwise  the court  would not know whether  the parties   have complied with the order on the timelines given.  He relied  on  Fatuma Zainabu Mohammed V Ghati Dennitah & Others Petition No. 6/2013 where the  Supreme  Court considered  the issue of  security  for costs as one of procedural justice  and not substantive  justice and held that  the court making the order for provision of security  for costs has discretionary  jurisdiction to enlarge  the period   within which the security  can be provided and stated:

“ It is  clear  therefore  that in  civil proceedings, extensions  of time to deposit  security for costs  is not  only possible  before and after the lapse of time  allowed for  such  deposit, but also after the  dismissal of the suit in default  of the security.  Because of this flexibility with regard to timelines for furnishing security for costs through extension of time by the court, the time prescribed for the deposit of security for costs in civil proceedings is obviously a matter of procedure which is not cast in stone.”

The plaintiff’s  counsel submitted that the court has discretion  to enlarge  time where  the time  given for  compliance has not  lapsed, where it  has lapsed  and even where the time has  lapsed  and no application to  dismiss suit for  non compliance  with the order  for depositing  of security  for cots has been successfully  prosecuted. In his view, what the plaintiff would be required is to show sufficient cause for the failure to provide security for costs timeously.  He relied on Banco  Arabe Espanal V Bank of Uganda-  Supreme Court  CA 8/98 where the Supreme Court of Uganda  expounded on the principle while interpreting the provisions  of law  similar to our Kenyan Order  26  of the Civil Procedure  Rules.

The plaintiff’s counsel submitted that  the failure to comply  with the timelines set in the consent was excusable  as it was caused by  omission  by Miss Nandwa  advocate  whereby she omitted  to make a note on the file of the plaintiff’s advocates  file showing the timelines given for deposit of  security, which mistake should not  be visited  on the plaintiff who had already released the funds  to his advocates long before  the consent  order was recorded. He further relied  on the case of Githere V Kimungu  [1976-1985] EZ 101 that rules of  procedure  are intended  to be  hand maidens  rather than a mistress  and that the court should not  be tied  and bound by rules, which are intended  as a general rule of  procedure  as this may lead to  an injustice.

The plaintiff’s counsel urged the court to find  in his favour as the cheque  dispatched  to the defendants has never  been returned  to the plaintiff who  has never made  use of the money and therefore  it should be  assumed  that it is already earning interest  as agreed, since  the application  was brought  without undue  delay and  that no prejudice  will be suffered  by the defendants  that cannot  be compensated  by an award of  costs  bearing   in mind the fact that  the banker’s  cheque  is still with  the defendant’s advocates.

I have carefully considered  the  plaintiff’s application, the grounds, the  supporting affidavit  annextures, the preliminary objection raised  and the  respective  parties  written  submissions  and precedents relied on . The issues for determination in this case are:

Whether this court has jurisdiction to hear and determination the application for enlargement of time sought.

Whether this court is functus officio.

If a and b above  are in the  negative, whether  the plaintiff  has made  out  a case for  the granting  of the orders  sought.

What orders should this court make?

Who should be condemned to pay costs of the application?

On whether this court has the jurisdiction to hear and determine the application by the plaintiff.  It was contended  by the defendant that the orders of  2nd October  2014 were  made by consent  of both parties  and therefore  the court cannot  set aside  a consent save by another  consent  and or unless  it is proved  that the said consent  was entered  into by mistake, fraud or  misrepresentation.  Further, that it would  be contrary to the  terms of  the  consent between  the parties  if this court   was to enlarge  time affecting a  suit that  had already been  dismissed.  The defendants relied on  Flora  Wasike  V Destimo Wasike (supra)case  wherein  it was held:

“It is settled law that a consent judgment can only be set aside as of a contract, for example, fraud, mistake or misrepresentation.  Section 67(2) does not necessarily  apply  where there is a dispute that the decree was passed by consent, though the burden of proving that  there was  no consent, or that the consent was not a valid one  may  be a heavyone.  An advocate would have ostensible authority to compromise a suit or consent to judgment, so far as the opponent is concerned.  The court would not readily assume   that a judgment recorded by a judge as being by consent was not so unless it was demonstrably shown otherwise.”

According to the defendants, the parties  having agreed  to be bound  by the consequences  of the plaintiff’s default  in complying with terms  of the consent, the  suit would  and it  stood dismissed  and in the absence  of an application to reinstate  it nor an application to set aside  the  consent, the court is therefore  functus  officio and therefore  the court  has no jurisdiction  to alter  the terms of  the consent between the  parties  and enlarge time. Further, the defendants  argued, relying  on Flora  Wasike (supra) and Hirani V  Kassam [1952] 19 ECA 131 page  137  that:

“The mode of paying the debt then, is part of the consent judgment.  That being so, the court  cannot  interfere with it except  in such circumstances as would afford  good ground for varying or  rescinding acontract  between the parties.”

Thus, the defendants contended that only parties to a contract can alter it and not the court.  They also found footage in the  case of Gateway Insurance Company Ltd  V Aries  Auto Sprays  [2011] e KLRwhere  application to extend time  set by consent  was denied , citing Visram JA that :

“ The High Court  had absolutely  no jurisdiction to alter the terms of the contract  between  the parties, and correctly rejected the appeal before it……The consent  order was made  on 22nd May 2003, limiting the time  for the doing  of any act  to 14 days from that day.  The appellant herein lost its right to apply to court for extension on 5th June 2003.  By that date, the default clause 1 (c) of the consent order has become operational and the orders stood vacated.”

On the other hand, the applicant maintained that this court  has jurisdiction to hear and determine  an  application for enlargement of time and they found  umbrage  in Article 159 of the Constitution and a number of decisions including Petition No. 6/2013 Fatuma Zainabu Mohammed  V Ghati Dennitah & Others  where the Supreme Court of Kenya  held that an issue  of  security for costs   is one of  procedural justice and not substantive  justice and that the  court in making  the order for provision of security  for costs   has discretionary jurisdiction  to enlarge  the period  within which  security  can be provided  even after  the lapse  of time.

The applicant  further relied on the Ugandan decision of Banco Arabe Espanal V Bank of Uganda (supra) where the court in dealing  with  a situation that arose under  a provision similar to our order  26 of the Civil Procedure Act stated:

(iii) Under Order 23 Rule 3 (2) of the Civil Procedure Rules, an order for dismissal of a case can be set aside for sufficient cause.  The circumstances  of the case showed  that the  appellant  was prevented by sufficient  cause  from depositing  the money for  security for costs within the time allowed because it was under the mistaken  belief that a guarantee would  suffice as security   for costs as  per the advice  of their  counsel.  The Supreme Court  found that  their present case  was one  where the  error by counsel for the  appellant should not  be visited  on the appellant, and  that the  circumstances  amounted  to sufficient  cause for the purposes  of setting  aside  the dismissal of the suit.”

The applicants also relied on Githere V Kimungu (1996-1985) where the Court  of Appeal held that  Rules of procedure  are intended  to be handmaidens rather  than mistresses  and that the  court should not  be tied and bound by  rules, which are intended  as general rules  of procedure as this may lead  to an injustice.

My careful examination of the cases referred to by the applicant   reveal that: in neither of those cases were the courts dealing with a situation in parimateria with the instant case.  In those cases  referred  to, the  courts  were dealing with the matter of discretionary powers of the court as to enlarge  time for  depositing  of security of costs, but not in  a situation where there  was a  consent between the parties  and  endorsed  by the court, which consent  set the terms and timelines  as well as  the consequences  of non compliance  by  the party. It therefore  follows that  the decisions  in the Supreme Court Petition 6/2013 and Supreme Court (Uganda) CA8/98 must be  distinguished with this  case where there  was  a consent  between the parties  and therefore  the issue  is whether  the court can  be asked by one party  to set aside that consent, without  satisfying  the court on the principles  applicable and as espoused in the case of Flora N. Wasike V Destimo Wamboko (supra) that a consent  judgment  or order  can only be set  aside  on the same grounds  as would justify the setting aside of a  contract  for example, fraud, mistake  or misrepresentation.

In this case, it is  trite  from the Order  of 2nd October  2014 that the  parties  agreed  to the terms of the consent which the  learned Judge Waweru J  recorded as an order  of the court. In my view, an order of the  court which is recorded  out of or arising  from a consent of the parties is a binding  contract between the parties to the dispute  and as such, is like any other order of the court leaving no room for the discretion of the court to set aside  that order save where the complaining  party  shows to the  satisfaction of the court that  the consent  was entered into  by mistake, fraud or misrepresentation. Thus, a consent  between the parties  to the suit  presents  an impermissible fetters of the discretion of the court to tamper  with that consent  without the  consent of both parties or as would a  court set aside  a contract between parties  thereto, and  enlargement of time for compliance with a consent is equally fettered where such time is fixed by the consent between the parties.

In addition, this court  would only have  the power to set aside  a consent order  where it  is proved that the order was  contrary to the policy of the court  See Samson Ole  Tina  V Clerk, Transmara  County Council [2010] e KLRor where  it is proved that  an advocate  did not  have the authority  of his client  to record that  consent  or he  acted not in good faith  and contrary to express and  or negative  discretion of his client .  ( See  also R v District Land Registrar  & Another  Exparte Kiprono Tegen  & Another [2005] e KLR.This court  agrees that it must do  justice  according  to law and  avoid paying  undue attention  to abstract   technical strictures and procedural snares merely for the sake of technicality which may have  the effect  of restricting  access to justice  which is  itself  a constitutional right  and which  cannot be  abrogated or abridged by trazon  or subtle schemes  or maneuvers  ( See Otieno Mak’onyango V Attorney General [2012] e KLR  per Rawal J. This court  reminds itself that it cannot for  one moment  treat  a consent  between  parties, which consent  has not been  challenged  in anyway, as if  it was  just another elastic order capable  of being set aside in the discretion of  the court as was held in Brooke Bond Liebig Ltd V Mallya [1975] EA 266 that  a court cannot interfere  with a  consent judgment  except  in such circumstances  as would afford a good  ground for  varying  and rescinding a contract between the parties. In Kenya Commercial Bank Ltd V Specialized Engineering Company Ltd [1982] e KLR 485the court held  that :

“ The making  by the Court of a consent  order is not  an exercise  to be done otherwise  than on the  basis that  the parties fully  understand the meaning of the order either  personally or through their advocates and when made, such  an order  is not  lightly to be set  aside or varied by consent  or on one  or either  of the  recognized grounds.”

In Ismail  Surndery Hirani V Nourali & Esmail  Kassam [1952] EACA 131  the  court cited with approval  the passage  from “Set on Judgments and Orders  7th Edition  VOL 1” page 124 that:

“…….prima facie, any order made  in the presence  and  with the consent  of counsel is binding  on all parties  to the proceedings  or action, and  on those claiming under them……and  cannot be varied  or discharged unless obtained by fraud  or collusion, or  by an agreement  contrary to the policy of the court……….or if consent  was given without sufficient  material  facts, or in misapprehension or in  ignorance  of material facts  or in  general for a reason would enable   a court to set aside  an agreement.”.

Relying on the  above decisions, I  would hold without  hesitation that indeed  the court will not interfere  with the freedom of contract and  will not, merely because a man has  made an improvident contract, relieve  him from its consequences.  I am fortified by the Court of Appeal decision in Gateway Insurance Company Ltd V Aries  Auto  Sprays (supra)  wherein the facts  were similar to this  case and  the Court of Appeal  was clear  that Section 95 of the Civil Procedure  Act on enlargement  of time, and Order 50 Rule 6  of the Civil Procedure Rules on the same  subject  did not  apply to cases where  the time  sought to be enlarged  was fixed by consent of both parties. The above decision, which has not been overruled, cited Gogardhan  V Barsati Dir  1972 ALL 266 dealing  with a rule identical to our Order 50 Rule 6  where  the Indian court  held:

“ Even  where an order is  made  for doing a thing within a particular time  and order further  provides that the application, a suit or appeal shall stand  dismissed, if the  thing is not done within the time fixed, the  court has  jurisdiction, if sufficient  cause is  made out, to extend  the  time even when the application   for  extension of time is made after the  expiry  of the time fixed.  It is not the application to grant of further time, whether made before or after the expiry of the time granted which confers jurisdiction on the court.”

Nonetheless, the appellate Court found that The High Court had absolutely no jurisdiction to alter the terms of the contract between the parties and rejected the appeal.

I have no  reason to depart  from the majority  decision  of the Court of Appeal in the Gateway Insurance  Company Limited V   Aries  Auto  Sprays (supra) and find that  this court has  no jurisdiction  to enlarge the time  that was fixed by the parties’ consent.

On the issue of  this court being  functus officio, I do not  agree with  the defendants submission for reasons that this court is  given the power and  jurisdiction to review, vary or set aside its  own decisions  and therefore  it is not  functus officio.  My  finding is that  there having been  a validly recorded  consent  order  of this  court setting  out the terms  of the  compromise   which included  the timeframes  as well as  consequences  for non compliance thereof, that  compromise   became binding   contract  between the parties and  any party seeking  to vary or review any part of that compromise  had to satisfy the  threshold  for setting aside or  varying  a contract  as aforesaid. In this case  the applicant only alleged that  they inadvertently did note  the time frames, which  they  consider to be sufficient  cause to  warrant  enlargement  of time.  That  may be so, but that  sufficient  cause would only persuade  this  court if the time sought  to be enlarged was set by  the court  and not with the parties’  consent.

Having found that this court is not inclined to  enlarge the time set  by the parties in the consent recorded on 2/10/2014, I would nor belabor to determine the merits of the application for enlargement of time but in case Iam found to be wrong in my above finding, on whether  or not the applicant  has made out a case  for  enlargement  of time within  which to  deposit security for costs, in my view, the reasons given are not sufficient to persuade this court  to enlarge the time set out in the consent. The allegation that a newly admitted advocate did not note the timelines of the consent on the file cannot be the sufficient cause or reason for failure to comply with the timelines set  by the parties themselves and only adopted by the court, as the terms of the consent must have been, as conceded by Mr Ongicho advocate in his supporting affidavit, negotiated terms and not imposed upon the newly admitted advocate holding brief  by the adverse party’s advocate otherwise it would not be a consent. This is evidenced by Annextures HAO 1, HAO 2, HAO3 and HAO 4 annexed to the supporting affidavit sworn by Mr Ongicho advocate on behalf of the applicant. It cannot therefore be that the plaintiff’s advocates were not aware of the terms of the consent prior to and even after the consent was recorded on 2/10/2014. It was upon the applicant’s counsel to verify the terms of the consent that they had negotiated over a period of time and it did not have to take them until January 2015 for them to purport to implement the consent whose terms they did not know.

On the allegation that it was mistake of counsel which should not be visited upon the litigant, it was stated by the Court of Appeal in the case of Habo Agencies Limited v Wilfred Odhiambo Musingo [2015] eKLR that:

“It is not enough for a party in litigation to simply blame the Advocates on record for all manner of transgressions in the conduct of the litigation. Courts have always emphasized that parties have a responsibility to show interest in and to follow up their cases even when they are represented by counsel.”

In   CIVIL APPEAL NO.41 OF 2014 Mombasa per:MAKHANDIA, OUKO & M’INOTI, JJ.A.)   TANA AND ATHI RIVERS DEVELOPMENT AUTHORITY v JEREMIAH KIMIGHO MWAKIO &2 others it was held that-

“Itis without doubt that courts will readily excuse a mistake of counsel if it affords a justiciable, expeditious and holistic disposal of a matter. However, it is to be noted that the exercise of such discretion is by no means automatic. While acknowledging that mistake of counsel should not be visited on a client, it should be remembered that counsel’s duty is not limited to his client; he has a corresponding duty to the court in which he practices and even to the other side. The Appellate Court cited Halsbury’s Laws of England, 4th Edn, Vol 44 at p 100-101)and also Re Jones [1870], 6 Ch. App 497in which Lord Hatherley communicated the court’s expectations this way:

‘….I think it is the duty of the court to be equally anxious to see that solicitors not only perform their duty towards their own clients, but also towards all those against whom they are concerned…’

Under this duty, counsel is unequivocally obliged to exercise candor and not aid a litigant in subversion of justice. Even though the determination of whether or not counsel has failed in this obligation is dependent on the circumstances of a case, as a custodian of justice, the court must always stay alive to the interests of both parties. This is of paramount importance.   Thus, there is a corollary to the hallowed maxim that mistakes of counsel should not be visited on a client.  This is to be found in the case Ketteman & others v. Hansel Properties Ltd [1988] 1 All ER 38;in which an application was brought for belated amendment of the defence; an amendment which had been necessitated by mistake of counsel. In his judgment, Lord Griffith stated that

“Legal business should be conducted efficiently. We can no longer afford to show the same indulgence towards the negligent conduct of litigation as was perhaps possible in a more leisured age. There will be cases in which justice will be better served by allowing the consequences of the negligence of lawyers to fall on their own heads rather than allowing an amendment at a very late stage in the proceedings.”

Needless to say, the application to amend a defence on the basis of an inadvertent mistake by counsel was disallowed.

To our mind, this is the most proximate way to balance out the competing interests of both parties to the suit. That the conduct complained of in this case was committed by a clerk is immaterial, for it is the law of agency that the principal should be bound by the acts of his agent. (See Ahmed v. Highway Carriers [1986] LLR 258 (CAK)and also (Myers v. Elman [1939] 4ALL E.R 484)  as stated by Viscount Maughan in the Myer’s case,

“…the jurisdiction may be exercised where the solicitor is merely negligent; it would seem to follow that he cannot shelter himself behind a clerk for whose actions within the scope of his authority he is liable…. My conclusion is that Elman (the solicitor) cannot dissociate himself from the acts and defaults of Osborn (the clerk) and in what follows, I shall generally omit any reference to him and shall treat his acts as being those of his principal.”

Hence, the mistakes of Mr. Mouko’s clerk became the mistakes of Mr. Mouko. This takes us back to the question, was the same excusable enough to warrant court’s favour?

In determining whether to exercise the discretion in a party’s favour, the court pays regard to the damage sought to be forestalled vis a vis the prejudice to be visited on the opposing party. In view of the age of this case and the timelines within which the appellant has acted, we take the view that the appellant has been less than candid with the court and that the appellant’s true intentions are the derailment of the suit.”

This court also refuses to be persuaded by the deposition that the signatory to the account was out of the country for close to two months as there was no evidence to support that allegation in the affidavit of Mr Ongicho. Further, the allegation that the delay was due to the closure of the plaintiff’s advocates’ offices from mid December 2014 to January 2015 did not assist in the explanation for the delay since by mid December, 2014, the applicant were already out of time and in any event, nothing stopped him from applying for enlargement of time immediately after reopening the offices in early January 2015.

For all the above reasons, I find that this being an old- 2006 case, the reasons given for failure to comply with the consent as recorded in court are not persuasive to invite the discretion of the court to enlarge time for compliance with the consent order for deposit of security for costs and the provisions of Article 159 of the Constitution would not be invoked to assist a party who in my view has sought to delay justice which in itself is contrary to the very Article 159 of the Constitution that justice shall not be delayed and which provisions on procedural technicalities that he seeks to rely on are in my view, not applicable in the circumstances of this case.

Accordingly I dismiss the application by the plaintiff/applicant dated 24th February 2015 with costs to the defendants/respondents.

Dated, signed and delivered in open court at Nairobi this 7th day of October 2015.

R.E. ABURILI

JUDGE