Simon Emonger Enangei v Sumprose Okalo Madegwa [2014] KEHC 298 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

ELC. 143 OF 2013 (FORMERLY HCC. 21 OF 2007)

SIMON EMONGER ENANGEI …………….....…………….. PLAINTIFF

=VERSUS=

SUMPROSE OKALO MADEGWA ……………………..  DEFENDANT

R U L I N G.

The Plaintiff SIMON EMONGOR ENAGAI, filed the application dated 19. 11. 2014 praying for the following orders:

‘’ 1.  That this  honorable  court do  revokes and or cancels the consent order dated 13th October,  2011, made  between my counsel and Respondent’s  Counsel  which was made without my knowledge and consultation.

2.  That costs be in the cause.’’

The Plaintiff  set out three grounds in support of his application  which are;

‘’ i)   That I was not consulted whatsoever when the stated consent of 13. 10. 2011 was entered.

ii)   That  my counsel on record at that time was compromised to enter the same since he was offered some of this plots.

iii)  That l have never entered into an agreement  to sell land parcel No. North /Teso/Kocholia/1223. ’’

The application is also supported by the Plaintiff’s affidavit  sworn on 19th November, 2013 in which  he among others depones as follows;

That he  was represented by M/S. Kassim Sifuna & Associate Advocates  in this suit.

That  he had not entered into a sale agreement to sell his land North Teso/Kocholia/1223 and that the advocate entered  into the consent order of 13th October, 2011 without  his instructions.

That M/S. Elungata & co. Advocates  who were his counsel at the time were compromised by Respondent who he later discovered was related to  the counsel.

That  the Respondent is likely to get the title deeds to land parcels North Teso/Kocholia/1424, 1425 and 1800 without  his consent.

The Defendant  filed grounds  of opposition dated 27th November, 2013 through M/S. Bogonko, Otanga & co. Advocates  setting out three grounds as follows;

‘’ 1. That he said application is frivolous, vexatious and scandalous .

2. That the application is an abuse of court process in view of another application dated 26th July, 2012 which is still pending.

3. That the application is misconceived and without merit and that the same is spurious as the applicant  was at all times  represented by able counsel and was present at the time  the order was made and is bound by the said order.’’

The Defendant  also filed a replying affidavit  sworn  on 20th March, 2014 and filed through his new advocates, M/S. Bulimo & co. Advocates in which she among others depones;

1. That the lawyers on record had proper instructions when the consent impugned was entered.

2. That she did not offer any plot to the Plaintiff counsel as alleged and was not aware that the counsel had been  compromised.

3. That indeed  she had sale agreement with the Plaintiff under which she bought  the suit land which she has taken possession and had title deed issued to her names on 25th January, 2000. The copies  of the title  deeds are annexed  to the affidavit.

HISTORY OF THE SUIT.

The Plaintiff filed this suit through plaint dated 19th January, 2007 through  M/S. Etyang  Oroni & co. Advocates praying for permanent injunction  and cancellation of titles obtained by Defendant  from Land parcel North Teso/Kocholia/1223.

In the paragraphs 3 to 5 of  the said plaint, the Plaintiff averred that;

‘’3. The Plaintiff entered into a land sale agreement with the Defendant to purchase a portion of land parcel No. North Teso/Kocholia/1223  of which the purchase price was paid.

4. The Defendant  has moved without the knowledge of the Plaintiff and obtained  title to the detriment of the Plaintiff hence this action.

5. The Defendant has further moved to demarcate the Plaintiff’s land without consent.’’

M/S. Bogonko, Otanga & co. Advocates entered appearance and filed defence for the Defendant  dated 7th August, 2007 terming the suit bad in law and time barred. The Defendant further avers that land parcel North Teso/Kocholia/1223  was closed  on 17th July, 1994  upon being subdivided by Plaintiff into seven portions. That the portions she  occupied were bought from Plaintiff and were transferred to her names by the Plaintiff following  the due process.

The Plaintiff, through his counsel filed an amended  plaint dated 11th December, 2007 with  the following prayers;

‘’A (i) That this honourable (court) do order cancellation of title to land parcel North Teso/Kocholia/1425 in the names of Defendant and it reverts  back to the Plaintiff.

B (i)  Cancellation  of title to land parcel No. North Teso/Kocholia/1800 and an order for resurvey  and thereafter transferring  1 ½  acres  purchased to the  Defendant and the extra  1 ½  acres to revert  back to the Plaintiff.’’

C  Costs of this suit.’’

Plaintiff also  filed an application dated 11th December, 2007 seeking for an injunction against Defendant which  was on 14th  December, 2007 fixed for hearing  on 4th March, 2008. No further  action was taken on that application.

Defendant filed an application dated  30th July, 2008 seeking for  a temporary  injunction  against Plaintiff and interim orders were granted on 1st December, 2008.

M/S.  Ipapu P. Jackah filed notice of change of advocate dated 25th September, 2008 and came on record  for Plaintiff in place of M/S. Etyang Oroni & co advocates .  He also filed an application dated 25th  March, 2010 for leave to amend the plaint as the amended plaint filed earlier  was without leave. That application was filed to regularize the position  as directed by the  court on 2nd March, 2010. A consent  order  dated 14th April, 2010, and signed by both counsel,  was filed allowing the application dated 25th March, 2010.

The Plaintiff,  through M/S. Ipapu  P. Jackah  & co. Advocates,  filed the amended plaint dated 12. 12. 2010 which  contains the following prayers;

‘’ a.   A permanent injunction restraining the defendant from interfering   with land parcel No. North Teso/Kocholia/1223.

b.   That this honorable court does order cancellation of these title which were fraudulently obtained from N. Teso/Kocholia/1223.

1.  North Teso/Kocholia/1223

2.  North Teso/Kocholia/1420, 1421,1422, 1423,1424, 1425. ’’

The Defendant  then filed a defence to the amended  plaint  and counter claim dated 4th January, 2011 though  her advocates  praying for an injunction against  Plaintiff  from interfering with the seven suit properties listed  and costs.

M/S. Ipapu P. Jackah  & co. advocates filed a notice  ceasing to act for the Plaintiff dated 3rd January, 2011 and filed  on 18th January, 2011.

11.  On 3rd February, 2011, M/S. Kassim Sifuna & Associates  Advocates filed a notice of appointment to act for Plaintiff in place of M/S. Ipapu P. Jackah  & co. Advocates dated 24th January, 2011.

The counsel for the Plaintiff and Defendant filed list of documents dated 10th October, 2011 and 3rd June, 2011 respectively.

On 13th October, 2011, the  consent order which effectively  compromised  the entire suit was recorded by the court in the presence of Mr. Kassim  for the Plaintiff and Mr. Bogonko  for the Defendant.  Both  counsel appended their signature next  to their names at the coram space of the court  file on that date.

That on 31st  July, 2012, the Plaintiff  filed a notice to act in person  dated 26th July, 2012  and an application of the temporary injunction against  Defendant,  claiming the  parcels awarded to Defendant  by the court order  of 13th October, 2011 did not exist  on the ground,  among other reasons.

The Defendant  filed a replying affidavit to the application  through her advocates stating  that the consent  of 13. 10. 2011 was entered into in the presence  of both parties  and their advocates and pursuant to negotiations carried outside the court  between the parties and their advocates.

M/S. Elungata & co. Advocates wrote a letter to the Deputy  Registrar dated 24th  April, 2013  seeking for copies  of the documents  in the court file and the request was declined as they were not on record for any of the parties.

On 13th  November, 2013, the Plaintiff  filed another notice to act in person  and the application subject matter of this  ruling.

M/S. Ashioya  & co. Advocates  then filed two notices of  appointment  of advocate for the Plaintiff dated 2nd December, 2013  and 18th February, 2014.

M/S. Obura- Obwatinya & co. Advocates  filed notice of change  of advocate dated  6th March, 2014 coming on record for the Plaintiff in  place of M/S. Ashioya & co. Advocates.

M/S. Bulimo & co. Advocates filed  notice of change  of advocate    dated 10th March, 2014 for the Defendant to the  application  dated   19th November, 2013.

During the hearing of the application dated 19th November, 2013  on the 8th April, 2014, Mr. Obwatinya  and Mr. Wamalwa  appeared  for the Plaintiff and Defendant respectively and made oral submissions on behalf of their clients.  I have  carefully considered the submissions  by counsel, grounds  set out  on the application, grounds  of opposition, supporting  and replying affidavits.  I have also perused the entire court record including the hand written notes and the documents filed and come to the following findings.;

That both parties had claims against each other which were set out in the amended plaint and amended defence and counterclaim dated 14th December, 2010 and 4th January, 2011 respectively.

That the Plaintiff claim  against Defendant was primarily that  titles created after subdivision  of his land parcel North Teso/Kocholia/1223 being North Teso/Kocholia/1800, 1420, 1425 and registered  in the names of Defendant  be cancelled and Defendant be permanently restrained from interfering  with the land.

The Defendant  claim  against Plaintiff was that his case be dismissed  and judgment entered in her favour restraining Plaintiff from  interfering  with her land parcels North Teso/Kocholia/1420 to 1425 and 1800.

That  when the matter came up before court on 13th October, 2011, the consent  which Plaintiff  now seeks to impugne was  entered  into by the respective counsel  then on record for the parties  in this suit.  One Mr. Kassim  signed the day’s entry against  his name for the Plaintiff.  The firm of M/S. Kassim Sifuna & Associates Advocates had come on record for Plaintiff through  the notice of appointment of advocate dated 24th  January, 2011 and filed on 3rd February, 2011. That firm of advocates remained on record for Plaintiff all through the time of entry of the consent judgment. The  consent of 13th October, 2011  effectively compromised  the whole suit and any party wishing to change  an advocate or to act in person needed to comply with order  9 Rule 9 of the Civil Procedure Rule to obtain the consent  of the parties or a Court Order to that effect.

That when  the Plaintiff filed  the notice  to act in person dated 26th July, 2012 on 31st  July, 2012  and the application of the same  date which is still pending , he  had not,  and to date has not, complied with  Order 9 rule 9  of the Civil Procedure Rules. No steps have been taken to prosecute the application dated  26th July, 2012  and filed on 31st July, 2012.  In view of the application dated 19th November, 2013 by the same party, the court takes the position that the Plaintiff has technically abandoned the application and the same is accordingly struck out.

That this  case having been compromised or settled in terms of the consent order of 13th October, 2011,  an appeal was not an an option. The provisions of section 67 (2)  of Civil Procedure Act addresses  this matter in the following terms;

‘’67  (1)…………………..

(2)     No appeal shall lie from a decree passed by the court with the consent of the parties.’’

A party who wishes to challenge or impugne a consent order  has one of the options as one  applying for a review or setting aside the consent order under Order 45  of the Civil Procedure Rules. For such a party to be successful, the party must establish the existence of either fraud, collusion, ignorance of sufficient materials or any other reason that may enable the court to set aside an agreement or contract. This position has been clearly dealt with in many cases by various  superior courts and the following six cases are but examples;

Kahagi Ndirangu –vs-  Kenya Power and Lighting  company Ltd (2014)eKLR.

Evans  Gachoki Njuki & 2  others –vs- Wilson Njuki Kirukuma (2008)eKLR.

Kenya Commercial Bank –vs-  Specialized  Engineering co. Ltd 1982 KLR 485.

Florence  Wasike –vs- Destimo  Wamboko 1982  - 88 KAR 625.

Purcell –vs- F.C. Tigal Ltd (1970) 3 All ER. 671.

Kenya Commercial Bank Ltd., -vs- Benjoh Amalgamated Ltd & Another  C.A. No. 276 of 1997.

That the  disposition of the Defendant in her undated replying affidavit  filed on 9th August, 2012  responding  to the  Plaintiff’s  application  dated 26th July, 2012, that both parties were present and negotiated outside the court before entering  the consent  of 13th October, 2011 has not been rebutted. The Plaintiff claim  that he had not given his consent or instructions to his advocate to enter the consent of 13th October, 2011 remains a mere allegation.  The Defendant, and for that  matter, the  court may not expected to know the extent  of the instructions Plaintiff had given his advocate.  It is however not disputed that Mr. Kassim  was as of  13th October, 2011  on record for the Plaintiff. In the case of  Kenya Commercial Bank  Limited –vs- Benjoh Amalgamated & Another  quoted above, the Court of Appeal  stated;

‘’ The extent  of authority  of a solicitor  to compromise is  set out in a passage  in the Supreme  court Practice 1976 (Vol. 2) paragraph 2013 page 620 as follows;

‘’Authority  of solicitor  - a solicitor  has a general authority  to compromise  on behalf of his client if he acts bona fide and not contrary to express negative direction; and it would seem that a solicitor acting as agent for the principal  solicitor has the same power.  (Re Newen, [1903] 1 Ch pp 817, 818; Little  -vs- spreadbury, [1910] 2 KB 658) No  Limitation  of the implied authority avails the client as against the other side unless such limitation  has been brought to their notice – see  Welsh –vs-  Roe [1918 – (9] All E.R 620. ’’

The court went  ahead  to refer to the case  of Brooke Bond  liebig (T) Limited  -vs-  Mallya [1975]E.A 266 at page 269 where Law J.A restated the law applicable  in consent order  as follows;

‘’ The circumstances in which  a consent  judgment may be interfered with were  considered by this court in Hirani –vs- Kassim  (1952) 19 EACA 131,  where the following passage from Seton  on Judgment and Orders, 7th Edition, Vol. 1 P. 124 was approved;

‘’ 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 misapprehended or in ignorance  of material facts  or in  general for a reason which would  enable the court to set aside an agreement.’’

In this case, all the material facts were known to the parties and their counsel as they had exchanged the documents. Among the documents filed by  advocates but wrongly headed , ‘’Plaintiff’s  list of documents,’’  dated 3rd June, 2011 were  copy  of mutation  form for North Teso/Kocholia/1223 under which the land was subdivided to parcels 1419 – 1425 in 1994 by the Plaintiff.  There is also the copy of mutation  form of North Teso/Kocholia/1419 showing it was subdivided  to parcel 1799 and 1800 by the Defendant  in 1997.  There are  also copies  of  the title deeds for North Teso/Kocholia/1800, 1420 to 1425  all in the names of Defendant.  The consent  of 13th October, 2011  had the  effect of conferring  ownership  of North Teso/Kocholia/1425 to the Plaintiff from the Defendant and the Defendant do not seem to have any objections to that.  The claim  by Plaintiff that he had not given his counsel instructions to compromise  the suit in the terms of 13th October, 2011 cannot therefore hold water without the Plaintiff establishing   that he had  specifically  restricted his counsel  from compromising the case in the terms of the said consent  and   that the  Defendant had knowledge of the Limitation.This  could have been by availing  a written document setting out the nature of the instructions he had given his advocate.  Such a document  should clearly show his  counsel did not have  instructions to enter into the consent of the nature of that of 13th October, 2011 and further Plaintiff  would have to establish  that Defendant  were aware  of the limit of the instructions to his counsel.  As no such limit of instructions on the Plaintiff’s counsel was established, then  the counsel  had the authority to  compromise  the suit as he did  in the consent  of 13th October, 2011on behalf of his client.

That M/S. Elungata  & co. advocates who Plaintiff depones in paragraph 8  of his supporting affidavit sworn on 19th November, 2013  was  compromised by the Defendant and that  he was a   relative of the Defendant was never  on record for any of the parties in this suit.   The only  thing the firm of M/S. Elungata  & co. Advocates  did in this suit is to do the letter dated 24. 5.2013 seeking   for copies of documents  in this file which request was rightly  declined by the Deputy Registrar.  The  letter was in any case being done about one year and seven months  after  the consent  order of 13th October, 2011 was entered.

The Court of Appeal  in the case cited above said a court cannot interfere with a consent  judgment  except  in such circumstances as would  afford good ground for varying or rescinding  a contract between parties.  The court went on and referred to the case of Flora Wasike –vs- Destimo  Wamboko  (1988) 1 KAR 625 where Hancox JA (as  he then was) stated;

‘’It is  now settled law that a consent judgment or order has contractual  effect  and can only be set aside on grounds which would  justify setting  a contract aside,  or it  contain conditions remaining to be fulfilled which are not carried out’’.

The Plaintiff  in this case has not in his application dated 19th November, 2011 indicated what has not been done or effected of the consent order of 13th October, 2011 that can make  this court set aside or review the consent order.  I also see nothing that can be attributed to the Defendant that  can make this court be moved to review  or set aside the  consent  order, leave alone to revoke or cancel it.

The Plaintiff  filed the application  dated  19th November, 2013 over  two years  from the date the  consent order of 13th October, 2011 was entered and has not offered an explanation.

For reasons shown above, I find no merit in the application dated 19th November, 2013  and the application is dismissed  with costs to the Defendant.

It is so ordered.

S.M. KIBUNJA

JUDGE.

DATED AND DELIVERED IN OPEN COURT ON 13th DAY OF MAY, 2014.

IN THE PRESENCE OF;

JUDGE.