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ELCPartially AllowedNot stated in extract· [2019] KEELC 4333 (KLR)

Kishushe Ranching Co-operative Soceity v Wanjala Mining Company Ltd & another [2019] KEELC 4333 (KLR)

Environment and Land Court of Kenya
7 March 2019
1,444 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The 2nd defendant, a mining company, applied under sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 to enlarge the 180-day period in clauses 2 and 4 of a consent adopted as a court order on 26 February 2018 (decree issued 16 March 2018), within which it was required to remove its stockpile and equipment from the suit property and hand over vacant possession to the plaintiff. The applicant explained that after commencing removal in March 2018 it was stopped by the County Government of Taita Taveta and had to obtain approvals, which were only granted on 1 August 2018, leaving insufficient time. Annexed correspondence showed active engagement with the County Government from April to July 2018, rebutting the plaintiff's claim of indolence. The plaintiff opposed, arguing the applicant had been dilatory, that the application was premature as negotiations remained open, and that the applicant had initially sought 360 days. The court held that although a consent judgment is equal to a contract which courts should not re-write, the applicant sought only an extension of time contemplated by clause 4 of the consent; liberty to apply exists to assist implementation of a consent order, not to vary it. The court found the plaintiff unreasonably withheld consent by imposing monetary conditions, and no renegotiation was needed where only time to give effect to the earlier order was sought. The application was allowed with a 90-day extension only, each party bearing its own costs.

Key legal issues

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01

Whether the applicant demonstrated diligence in obtaining County Government approvals

Holding

The correspondence showed active engagement with the County Government from April to July 2018, answering the plaintiff's claim of indolence

Reasoning

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.

p. 2
02

Whether the plaintiff unreasonably withheld consent to extension

Holding

The court found the plaintiff unreasonably withheld consent by imposing monetary conditions

Reasoning

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.

p. 2
03

Whether the Court may vary the consent order

Holding

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

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The application is allowed
  2. 2.Time for removal of the stockpile and equipment extended for 90 days from the date of delivery of the ruling
  3. 3.Each party to meet their own costs of the application

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 40
  • Mining ActSection 183

Cases cited (7)

  • Porton Capital Technology Funds & Others vs 3 M UK Holdings
    (2011) EWHC 2895
  • E. A Portland Cement Co. Ltd vs Superior Homes Ltd
    (2017) eKLR
  • Lawrence Kinyua Mwai vs Nyarungiru Farmers Co Ltd & Another
    (2011) eKLR
  • Brookbond Liebig Ltd vs Mallya
    (1975) E A 266
  • Flora Wasike vs Destimo Wamboka
    (1988) IKAR 625
  • Nathalal Monji Rai and Others vs Standard Bank Kenya Ltd
    (1998) LLR6400 (CAK)
  • Superior Homes Ltd vs E. A Portland Cement Co. Ltd
    (2014) eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 of the Civil Procedure Rules

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, "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.