Wairagu v Mwiki PSV Sacco Society Ltd & another [2023] KEHC 23200 (KLR)

Wairagu v Mwiki PSV Sacco Society Ltd & another (Civil Appeal E670 of 2023) [2023] KEHC 23200 (KLR) (Civ) (5 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23200 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E670 of 2023

JN Mulwa, J

October 5, 2023

Between

John Peter Wairagu

Applicant

and

Mwiki PSV Sacco Society Ltd

1st Respondent

Joseph Kimani Muthure

2nd Respondent

Ruling

1. Before the Court is an application dated 13/10/2022. The Appellant who is the applicant herein seeks orders that a declaration do issue that in allowing the subject appeal, this Honourable Court automatically reinstated Milimani SCCC No. E121 of 2021 (formerly Civil Suit No. 1073 of 2020. The application is based on the grounds set out on the face of the application and Supporting Affidavit sworn on the 13/10/2022 by one Eddah Ngichare Simiyu, an Advocate acting for the Applicant.

2. In opposition to the application, Simon Mbirua Karangu, Chairperson of the 1st Respondent swore the Replying Affidavit on the 24/11/2022. Parties urged the Court to determine the application on their pleadings as filed.

3. A perusal of the Court proceedings before the Deputy Registrar (Hon. L. A. Mumassabba) on the 7/6/2022 in presence of the parties Advocates, show that by consent, the Appeal herein was allowed with no orders as to cost and was adopted as an order of the Court.

4. The Appeal was against the dismissal order by the trial Court on the 27/9/2021 in respect of Nairobi SCCC No. E121 of 2021. The Memorandum of Appeal is dated 15/10/2021.

5. It is the Applicants' prayer and submission that by dismissing the Appeal as aforestated, the Court effectively reinstated the trial Court’s case; and therefore seeks a declaration to that effect by the instant application.

6. Thereafter, on the 27/9/2021, the trial magistrate dismissed the case for want of prosecution. The Respondent purports to convince the Court that by the consent of the parties advocates dated 7/6/2022, the trial Court case was not reinstated for hearing as such order was not sought in the Memorandum of Appeal as filed, and therefore, as parties are bound by their pleadings, this Court cannot purport to extend the scope and effect of the consent orders obtained on the basis of the Memorandum of Appeal.

7. I have considered the above averments by both Counsel. On 7/6/2022, the application dated 28/7/2021 was listed for hearing. The applicant in the said application was an Intended Interested Party, who sought orders to be enjoined in the proceedings. It is clearly recorded that at 11. 40am, in the presence of the parties Advocates, the Court recorded that;“Parties have consented to the application dated 28/7/2021”, thus the Interested party was added as a party to the case before the trial court’’

8. Thereafter, having allowed the application and without being prompted by any of the parties, as the record shows, the trial Magistrate dismissed the case for want of prosecution which is the subject of the Appeal and the application before this court.With the above material facts in the parties knowledge, the Advocates proceeded to record a consent allowing the Appeal, effectively bringing to life the trial Court Case No. SCCC /E121 of 2021.

9. I have considered the Respondents' submissions in its interpretation of the simple consent order which it was party to. Before agreeing to record the Consent order, both parties, and particularly the Respondent ought to have known what the consent meant and what it would boil to. In my considered view, the consent order dismissed the appeal and reinstated the small claims court case for hearing. The Consent order dated 7/6/2022 is on record having not been set aside or varied, and therefore remains in force.

10. The Appeal having been allowed with no orders as to costs, it shall remain so, unless otherwise varied by an order of the Court.The upshot is therefore that the application dated 13/10/2022 is hereby allowed in terms of Prayer No. 1. The trial court file shall be returned to the trial Court for directions on the further hearing of the Suit.The respondent shall have costs of the application.Orders accordingly.

DATED, DELIVERED AND SIGNED IN NAIROBI THIS 5TH DAY OF OCTOBER 2023. JANET MULWAJUDGE