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ELCDismissed· [2019] KEELC 4097 (KLR)

Julius Ngure Ngari v Michael Ngure Kathianyu [2019] KEELC 4097 (KLR)

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

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What this practically means

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Executive summary

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The Defendant in a land dispute moved the court by notice of motion dated 25th January 2019 seeking, principally, variation of a consent judgment recorded on 15th January 2018, under which judgment was entered for the Plaintiff for Kshs 322,000/- with interest at 14% per annum from the date of filing suit (8th April 1997), interest accrued to Kshs 901,600/-. The Defendant sought to pay interest at court rates from the date of the 1996 sale agreement instead, together with restraint of the sale of his properties in execution, contending the agreed rate was unfair and his properties worth some Kshs 11,000,000/- were disproportionate to the decretal amount. The Plaintiff opposed, contending the application was an abuse of process, that the consent was recorded in the Defendant's presence, and that no legal grounds for variation or stay had been demonstrated. The court framed two issues: variation of the interest rate, and restraint of sale in execution. Reviewing the settled principles in Hiran v Kassam and Brooke Bond Liebig v Mallya, the court held that a consent judgment can only be disturbed on grounds that would justify rescinding a contract, such as fraud, collusion or misapprehension of material facts. None was alleged; mere dissatisfaction with the agreed rate, and a delay of over a year in moving the court, did not justify interference. The restraint prayer had been spent, status quo having already been ordered. The court nonetheless noted a clerical error in the decree, which indicated interest running from 8th April 1993 instead of 8th April 1997, and directed its correction. The motion was dismissed with costs to the Plaintiff.

Key legal issues

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01

Whether the consent judgment's 14% interest rate should be varied to court rates

Holding

The application to vary was refused; no vitiating factor was established and the delay of over a year disentitled the Defendant.

Reasoning

The consent was recorded in court in the Defendant's presence and confirmed by him personally. He neither claimed misunderstanding of the terms nor alleged fraud, undue influence, coercion or other unlawful means. Following Hiran v Kassam and Brooke Bond Liebig v Mallya, a consent judgment binds like a contract and can only be disturbed on grounds justifying rescission of contract. The Defendant's subjective view that 14% was unfair, and his year-long delay in moving the court, did not qualify.

p. 2
02

Whether the decree contained a material error

Holding

The decree's indication that interest runs from 8th April 1993 instead of 8th April 1997 was a clerical error on the face of the decree, correctable without affecting the consent.

Reasoning

The consent provided that interest of 14% per annum would run from the date of filing suit (8th April 1997), but the decree as drawn indicated 8th April 1993. The Deputy Registrar was directed to correct this. Because the interest amount up to 15th January 2018 remained Kshs 901,600 as per the consent, the error was clerical and occasioned no miscarriage of justice.

p. 3
03

Whether the Defendant's properties should be restrained from sale in execution

Holding

The stay/restraint prayer had been spent, having been sought only pending hearing and determination of the application.

Reasoning

The court had already made an order for maintenance of status quo pending delivery of the ruling, so the interlocutory restraint sought no longer required determination. The application overall having failed, no substantive stay of execution was granted.

p. 3

Legal principles established

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  • A consent judgment cannot be varied or set aside except on grounds that would justify varying or rescinding a contract, such as fraud, collusion, or agreement contrary to the policy of the court.
  • Mere dissatisfaction with the fairness of an agreed interest rate, without more, is not a ground for interfering with a consent judgment.

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 4097 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4097/eng@2019-03-07

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