Kashingiri (Suing as the legal Representative of the Estate of Paul Wanyiri Kaiba) v Mukanda [2022] KEHC 13686 (KLR)

Kashingiri (Suing as the legal Representative of the Estate of Paul Wanyiri Kaiba) v Mukanda (Civil Appeal 46 of 2021) [2022] KEHC 13686 (KLR) (13 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13686 (KLR)

Republic of Kenya

In the High Court at Kakamega

Civil Appeal 46 of 2021

PJO Otieno, J

October 13, 2022

Between

Jane Wamaitha Kashingiri (Suing as the legal Representative of the Estate of Paul Wanyiri Kaiba)

Appellant

and

Richard Mukanda

Respondent

(Being an appeal from the Ruling of Hon W. K. Cheruiyot, SRM, in Mumias SPM’s Court Civils Suit No. 264 of 2018 delivered on 23rd August 2021)

Judgment

1. This appeal challenges and faults the decision of the trial court by which it ruled and determined that the appellant, as respondent before it, had breach the terms of the consent dated October 22, 2020.

2. The application yielding that decision now appealed against was couched in the following fashion:-'(a)That there be stay of execution of the notice to show cause in execution herein pending the hearing and determination of the application.(b)That there be stay of execution and the notice to show cause in execution of the decree issued herein pending the filing, prosecution and final determination of the plaintiff/applicants intended suit under the provisions of CAP 405 as embodied in the consent order dated January 22, 2020 and also pending the hearing and determination of Kakamega High Court Civil Appeal No 31 OF 2020. (c)Costs of the application be provided for.'

3. The application was expressed to be brought pursuant to order 22 rule 22 as well as order 42 rule 6 of the Civil Procedure Rules. The grounds disclosed to premise the application were that the appellant here, as respondent then (henceforth the appellant) had been facilitated with funds to pay further court fees and to file a declaratory suit against an insurer as a consideration for which a consent was recorded on October 22, 2020 by which it undertook not to take out execution proceedings. The appellant allegedly proceeded so in violation and breach of the said consent by taking out a notice. It was equally added that an appeal had been filed which was not frivolous but arguable and which would be rendered nugatory if the respondent was committed to civil jail. The same grounds were reiterated in the affidavit in support which exhibited the consent and memorandum of appeal in Kakamega HCCA No 31 of 2020.

4. The application was resisted by the appellant by the replying affidavit sworn on February 26, 2021 and filed in court on March 1, 2021. The gist of the opposition was that the appellant had been indolent in dealing with the matter and that in any event there was no imminent danger of execution to warrant the application and orders sought in that the notice to show cause served was never execution process but a reminder to pay the decretal sum in full. In addition the respondent contended that the appeal filed being HCCA No 31 of 2020 was a mask intended to evade lawful court orders and obligations and therefore to frustrate her from reaping the fruits of the judgment. The respondent expressed fear that the grant of the orders sought would bless the indolence by the appellant and that they should be ordered to deposit the full security to secure the decretal sum.

5. In a reserved ruling after consideration of the rival submissions filed, the trial court rendered itself as follows:-'The respondent does not deny the existence of the consent. the respondent breached the terms of the consent by taking out a notice to show cause which amounts to commencement of execution proceedings. In other words, the consent order is binding on the parties and the respondent’s act of commencing execution proceedings was in blatant violation of the said consent order.The application before me dated February 11, 2020 is therefore merited and the same is hereby allowed in terms of prayer (d) limited to pending the filing, prosecution and determination of the respondent’s intended suit under CAP 405 as embodied in the consent dated October 22, 2020. '

6. It is that determination that aggrieved the appellant and provoked the current appeal by which there are set out five grounds of appeal. All the grounds urge only one point being that it was the respondent here and not the appellant who had breached the consent of October 22, 2020.

7. Accordingly, the only issue for determination, it being common ground that there was indeed a consent, is whether the appellant was entitled to take out execution by way of notice to show cause as it did.

8. I consider that to be the only issue while aware and appreciative of the contention by the appellant that notices to show cause is not an execution process but a way to put pressure upon the respondent to pay the full decretal sum. I consider such position not to merit much attention because it is an indubitable and mundane position of the law that notice to show cause is one of the various modes of execution.

9. To address the issue, the contents of the consent must be appraised. The consent between the parties read:-'By consent of the advocates for the plaintiff and the advocates for the 2nd defendant, it is hereby agreed as follows;1. That the 2nd defendant shall pay to the plaintiff’s advocates the sum of Kshs 150,000/= (one hundred and fifty thousand shillings only) of which Kshs 75,000/= has been paid as the 1st instalment on the date of signing this consent and the balance of Kshs 75,000/= shall be paid on or before November 30, 2020. 2.That in the meantime the plaintiff shall not levy or take out any execution proceedings against the 2nd defendant and shall instead file a declaratory suit against the insurer of the accident vehicle to enforce payment of her judgment by the said insurer of the accident vehicle.Dated at Busia this October 22, 2020. '

10. The parties consent, which is a contract, obligated the respondent to pay the sum of kshs 150,000/= to the appellant by two instalments as a consideration of the appellant fore bearing to take out execution proceedings but instead file a declaratory suit against the insurer to enforce payment of the decretal due for the respondent.

11. As observed by the trial court the replying affidavit by the appellant before it did not deny the terms of the consent nor did it allege any breach by the respondent. A reading of that replying affidavit gives the impression that the consent did not matter and that the respondent, was, notwithstanding the consent, obligated to pay the decree. That, to say the very least, was a design by the appellant to run away from a contractual obligation.

12. Having failed to allege and prove breach by the respondent before the trial court, she has now, by the submissions filed, faulted the court for failing to address the effect of failure to pay the additional Kshs 75,000/= by the November 30, 2020.

13. Such a fault cannot be taken seriously for two reasons. The very first reason is that the consent between the parties did not provide for a default clause but was specific that the appellant shall not pursue execution but file a declaratory suit. The second reason is that parties are bound by their pleadings and submissions are never pleadings nor evidence1. 1Wilhemsen Ship Services Ltd –vs- Gharib Hasham Rashid [2019] eKLR

14. The materials provided by parties in the affidavit filed showed irresistibly that parties agreed that the appellant would not pursue execution against the respondent but would pursue the respondent’s insurer. That was the covenant between the parties which the court has no right to alter or vitiate otherwise than on the established principles. Instead he has the obligation to enforce and have its terms observed and fulfilled.

15. The court finds that the trial court was fully appreciative of the principles of law applicable on when to tinker with parties consent and sought the due guidance from the decisions of the Court of Appeal in Flora Wasike –vs- Destino Waboko [1998] eKLR and Kenya Commercial Bank –vs- Specialized Engineering Ltd. I find the determination by the trial court to be beyond fault and may only reiterate the position of the law on the duty of the court to respect parties’ contract. The Court of Appeal in National Bank of Kenya Ltd –vs- Pipeplastic Samkolit (K) Limited [2001] eKLRhad this to say of the restraint the court has to exercise concerning the contract between parties. It said:-'A Court of law cannot rewrite a contract between the parties. The parties are bound by their terms of the contract unless coercion, fraud or undue influence are pleaded and proved.'

16. What the appellant sought to do before the trial court and continues to pursue here is an attempt at seeking to be relieved from its bargain. That is not acceptable both at law and in equity. In Finance Bank Ltd –vs- Spares and Industries Ltd (unreported), the Court of Appeal, Shah JA, did reiterate the position to be that ‘save for those special cases where equity might be prepared to relieve a party from a bad bargain. It is ordinarily no part of equity’s function to allow a party to escape from a bad bargain.’

17. In conclusion, it is the finding of the court that the appellant was bound by its bargain by which it received the money from the respondent to forebear execution and the law binds her not to resile from such a bargain. She retains her right to pursue payment from the insurer as she bargained. For those reasons, the appeal lacks merits and the same is dismissed with costs.

DATED, SIGNED AND DELIVERED AT KAKAMEGA, THIS 13TH DAY OF OCTOBER 2022. PATRICK JO OTIENOJUDGEIn the presence of:No appearance for the AppellantNo appearance for the RespondentCourt Assistant: Polycap Mukabwa