Odhiambo v Wambua & 3 others [2023] KEHC 23764 (KLR)

Odhiambo v Wambua & 3 others (Civil Appeal E058 of 2022) [2023] KEHC 23764 (KLR) (16 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23764 (KLR)

Republic of Kenya

In the High Court at Makueni

Civil Appeal E058 of 2022

TM Matheka, J

October 16, 2023

Between

Lamba Odhiambo

Appellant

and

Grace Nzuna Wambua & 3 others

Respondent

Ruling

1. The only issue for determination in this application dated April 15, 2023 is whether this court can vary the terms of the Consent Order entered into by counsel for the parties on the January 31, 2023.

2. The applicant had filed an application dated November 7, 2022 seeking orders of stay of execution of the Judgment in Tawa MCCC E32 of 2020 where the Hon L K Mwendwa in a judgment delivered on the October 25, 2022 apportioned liability at 50:50 as against the applicant and the respondents, awarded General Damages of Ksh 600000, future medicals of Ksh 100,000 and Special Damages of Ksh 5250.

3. Aggrieved by the decision, the applicant filed appeal and the application for stay.

4. This application was compromised on the January 31, 2023 via a consent where the parties agreed as follows:a.That the appellant /applicant to deposit the entire decretal sum amounting to Ksh 435,150 in a joint interest earning account within 30 days, andb.To serve the record of appeal in 60 days.

5. The appellant applicant complied with the terms of this consent with respect to the deposit of the money on the March 23, 2023, 20 days after the deadline.

6. The applicant has come back to court seeking the same stay orders as sought before the consistent, a declaration that they have complied with the consent of January 31, 2023, and without prejudice, an extension of the time for compliance with the consent order.

7. The application is opposed by the first respondent through the replying affidavit of Dunstan M Wambua. The main grounds are that the consent order can only be varied for justifiable reasons and the appellant has not set out any reasons for the same.

8. Parties agreed to proceed by way of written submissions.

9. For the applicant it was submitted on several issues; on the issue whether the court has jurisdiction to enable time for compliance. The applicant relied on s. 95 of the Civil Procedure Act and Order 50 rule 6 of the Civil Procedure Code on enlargement of time.

10. The applicant also cited Patricia Musimbi v Peter Khakali & Another[2021] eKLR on the extension of time due to the effects of Covid 19 pandemic.

11. The applicant also argued the issues as to whether there was unreasonable period of delay, the reason for delay , arguably of the appeal, prejudice that may be suffered by the respondent and the, importance of time lines, effect on public interest and administration of jussive – that the period of delay was not unreasonable the reason for delay . The applicant relied on Francis Ngumbi & Another v Sellah Oyiko Aguvani[2021] eKLR where compliance with an order of conditional stay failed due to Covid restrictions. On prejudice the applicant relied on Samuel Mwaura Muthumbi v Josephine Wanjiru Ngugi & Another[2018]eKLR. On the right of appeal, it was argued that the memorandum of appeal was arguable.

12. The first respondent argued that the order of consent was an order that could only be discharged on account of fraud or collusion, agreement that is contrary to policy and where the consent was given without material facts. East African Portland Cement Company Limited v Superior Homes Limited [2017]eKLR, and Joacan Company Limited& Another Vs Kahnga Mwangudza[2015]eKLR where it was stated that a court of law would be hesitant to interfere with the consent judgment of parties- except where there are grounds similar to those required for the rescinding of a contract. It was argued that no grounds were established for this,

13. I have carefully considered the submissions and authorities cited.

14. This is not a case of simple extension of time set by the court or statute. There the court would have the opportunity granted by s. 95 of the Civil Procedure Act and Order 50 rule 6 of the Civil Procedure Code to exercise its discretion. However, this is a case where there was a consent order. That changed the template to something else and it is not just an exercise of discretion. It is about interfering with the consent order of parties.

15. In this case the applicant went into the grounds that determine whether time should be extended, reasonable delay et al while the issue was whether the court can interfere with the consent. All the authorities placed before the court were about the extension of time, hence irrelevant.

16. There was no expression that the applicant entered into the consent without sufficient material, or that he was tricked by the respondent or that there was fraud. It was simply un explained dely. That cannot be the basis to interfere with the consent order.

17. In the circumstances, I find that the application for stay of execution, for extension of time or declaration that the applicant has complied is not merited and the same is dismissed with costs.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 16THOCTOBER 2023-----------------------------MUMBUA T MATHEKAJUDGECA NelimaNjuguna for ApplicantWambua for Respondent