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ELCDismissed· [2019] KEELC 4018 (KLR)

Julius Ngure Ngari v Michael Ngure Kathianyu [2019] KEELC 4018 (KLR)

Environment and Land Court
7 March 2019
YAY.M. Angima
1,751 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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An Embu court refused to reduce an agreed 14% interest rate, confirming that consent judgments in Kenya bind parties unless fraud, collusion or similar grounds exist.

What this practically means

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Executive summary

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The Defendant, by notice of motion dated 25th January 2019 under sections 1A, 1B, 3 and 3A of the Civil Procedure Act and Order 40 of the Civil Procedure Rules, sought variation of a consent judgment recorded on 15th January 2018 so that interest would run at court rates from 19th March 1996 instead of 14% per annum from the date of filing suit, together with liberty to deposit the principal and costs in court and an injunction restraining sale of four parcels of land (Gaturi/Nembure/8619-8621 and 8822) in execution. The Plaintiff opposed, contending the application was an abuse of process and a delaying tactic, the consent having been recorded in the Defendant's presence, and that the Defendant had not paid since entry of judgment. The court framed two issues: whether the interest rate should be varied, and whether the Plaintiff should be restrained from selling the Defendant's properties in execution. Applying Hiran v Kassam and Brooke Bond Liebig v Mallya, the court held that a consent judgment can only be varied on grounds justifying rescission of a contract; no vitiating factor was alleged, and dissatisfaction with the agreed rate was insufficient. The Defendant's one-year delay also weighed against relief. The injunction prayer was spent. The motion was dismissed with costs to the Plaintiff, but the court directed the Deputy Registrar to correct a clerical error so that interest runs from 8th April 1997 rather than 8th April 1993.

Key legal issues

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01

Whether the 14% per annum interest rate agreed in the consent judgment should be varied to court rates

Holding

The consent judgment stands; no ground for variation was established.

Reasoning

The consent was recorded in court in the Defendant's presence and its terms confirmed by him personally. No fraud, undue influence, coercion or other vitiating factor was alleged. Dissatisfaction with the agreed rate as 'unfair' is not a recognised ground. Further, the Defendant delayed over a year before moving the court, which may disentitle him to relief.

p. 2
02

Whether the Defendant's properties should be protected from execution

Holding

The prayer was spent and no relief was granted on it.

Reasoning

The injunction had been sought only pending hearing and determination of the application; the court had already ordered maintenance of status quo pending delivery of the ruling, so the prayer was overtaken by events.

p. 3
03

The discrepancy in the date from which interest runs in the drawn decree

Holding

The error was clerical and was directed to be corrected.

Reasoning

The consent required interest from 8th April 1997, but the decree indicated 8th April 1993. The amount of interest up to 15th January 2018 remained Kshs 901,600 as per the consent, so the error occasioned no miscarriage of justice and could be corrected by the Deputy Registrar.

p. 3

Legal principles established

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  • A consent judgment can only be varied or set aside on grounds that would justify varying or rescinding a contract between the parties, such as fraud, collusion, or misapprehension of material facts.
  • Inordinate delay in seeking relief from a consent judgment may disentitle a party from obtaining relief.

Court orders

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  1. 1.The Defendant's notice of motion dated 25th January 2019 is dismissed with costs to the Plaintiff.
  2. 2.The Deputy Registrar shall correct the error on the face of the decree to indicate that interest shall run with effect from 8th April 1997 and not 8th April 1993.

Authorities

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Legislation

  • Civil Procedure Act (Cap 21 Laws of Kenya)Sections 1A, 1B, 3 and 3A
  • Civil Procedure Rules, 2010Order 40 Rules 1, 2 and 4

Cases cited (5)

  • Hiran Vs Kassam
    [1952] 19 EACA 131
  • Brooke Bond Liebig Ltd Vs Mallya
    [1975] EA 266
  • Kenya Commercial Bank Ltd Vs Specialized Engineering Co. Ltd
    [1982] KLR 485
  • Wasike Vs Wamboko
    [1988] KLR 429
  • SMN Vs ZMS & 3 Others
    [2017] eKLR
Jurisdiction invoked
Sections 1A, 1B, 3 and 3A of the Civil Procedure Act (Cap 21) and Order 40 Rules 1, 2 and 4 of the Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Julius Ngure Ngari v Michael Ngure Kathianyu [2019] KEELC 4018 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4018/eng@2019-03-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.