Kishushe Ranching Co-operative Soceity v Wanjala Mining Company Ltd & another [2019] KEELC 4333 (KLR)
The bottom line
#A Mombasa court extended a mining company's deadline by 90 days to comply with a settlement order, ruling the other side unreasonably blocked the extension.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant demonstrated diligence in obtaining County Government approvals
The correspondence showed active engagement with the County Government from April to July 2018, answering the plaintiff's claim of indolence
The court reviewed letters dated between March and August 2018 exchanged between the applicant and the County Government of Taita Taveta and the Ministry of Mining. These showed continuous engagement from April to July before the 1 August 2018 approval, contradicting the plaintiff's assertion that the applicant had been inert for over a month and had not shown the period was spent obtaining approvals.
Whether the plaintiff unreasonably withheld consent to extension
The court found the plaintiff unreasonably withheld consent by imposing monetary conditions
The applicant had explained why an earlier extension could not be sought before obtaining the approval, and when the application was made, the plaintiff imposed conditions. Following the authority on unreasonably withholding consent, the court held this conduct amounted to unreasonable withholding, warranting judicial intervention on the timelines.
Whether the Court may vary the consent order
The Court may not re-write a consent order but may give effect to its working-out through liberty to apply, including extension of time contemplated by clause 4
Relying on the Nathalal Monji Rai case as quoted in Superior Homes, the court held that liberty to apply exists to assist implementation of a consent order, not to vary it. Since the applicant sought only time to give effect to the earlier order, no renegotiation of terms was necessary.
Legal principles established
#- Liberty to apply in a consent order exists only to assist implementation, not to vary the order
- A consent judgment is akin to a contract which courts should not re-write, but extension of time for its working-out may be sought under liberty to apply
Court orders
#- 1.The application is allowed
- 2.Time for removal of the stockpile and equipment extended for 90 days from the date of delivery of the ruling
- 3.Each party to meet their own costs of the application
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kishushe Ranching Co-operative Soceity v Wanjala Mining Company Ltd & another [2019] KEELC 4333 (KLR)", Case Analysis (2019). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4333/eng@2019-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.