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ELCDismissedMiscellaneous Application Nos. 94, 95 and 96 of 2019· [2022] KEELC 1507 (KLR)

Andrew & Steve Advocates v Paragon Electronics Limited [2022] KEELC 1507 (KLR)

Environment and Land Court
9 February 2022
LMLucy N. Mbugua
1,586 words in judgment
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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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This ruling of the Environment and Land Court at Nairobi (Lucy N. Mbugua, J) disposed of cross-applications arising from three files, Misc. Appl. Nos. 94, 95 and 96 of 2019, which concerned an Advocate-Client Bill of Costs ruled on by the taxing master on 29.10.2020. The parties recorded a consent dated 19.4.2021 marking the matters as fully settled with no orders as to costs, which was adopted as an order of the court on 17.5.2021 with both parties represented. The advocate then applied on 19.10.2021 to expunge the consent, contending that negotiations had been consolidated into settlement agreements and addendums which the client failed to execute, and that the client was only pursuing withdrawal of certain matters. The client responded with an application dated 18.11.2021 seeking a stay of the advocate's application, arguing that the consent flowed from a deed of settlement and that the dispute over the settlement's nature and extent was already the subject of a specific performance suit, CMCC E11231 of 2021 (Paragon Electronics Ltd v Stephen Kimathi Mutiso T/A Andrew Stence Advocates), making the advocate's application sub judice and an abuse of process. Applying Flora N. Wasike v Destino Wamboko on the binding nature of consent orders and the sub judice principles in Republic v Paul Kihara Kariuki ex parte Law Society of Kenya, the court found no plausible grounds to set aside the consent, holding that setting it aside would revive closed matters and spawn multiplicity of proceedings. The advocate's application was dismissed with costs to the client, the client's application marked spent, and all three files closed.

Key legal issues

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01

Whether the consent of 19.4.2021 should be set aside

Holding

The consent was duly executed and adopted as an order of the court on 17.5.2021 without any intervening application to halt adoption; no plausible grounds for setting it aside were established

Reasoning

Applying Flora N. Wasike v Destino Wamboko, a consent adopted as a court order binds the parties and can only be discharged on grounds such as fraud or collusion. The consent simply marked the matters as fully settled; disputes about the underlying settlement agreements had birthed a new cause of action already before the Chief Magistrate's Court. Setting aside the consent would revive closed matters, create multiplicity of proceedings and potential contradictory verdicts, amounting to an abuse of court process.

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02

Whether the client's application of 18.11.2021 for stay of proceedings should be granted

Holding

The court treated the 18.11.2021 application as a response to the advocate's application of 19.10.2021 and marked it as spent, having resolved the dispute by dismissing the advocate's application

Reasoning

Invoking Sections 1A and 1B of the Civil Procedure Act on active case management and the overriding objective, the court considered both applications together since both related to the negotiations culminating in the consent of 19.4.2021. Having dismissed the advocate's application, the stay sought became moot and the application was marked spent.

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Legal principles established

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  • A consent order made in the presence and with the consent of counsel is binding and cannot be varied or discharged unless obtained by fraud, collusion, agreement contrary to the policy of the court, or without sufficient material facts
  • The sub judice rule prevents courts from simultaneously entertaining parallel litigation over the same cause of action, subject matter and relief, to avoid contradictory verdicts and multiplicity of proceedings

Court orders

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  1. 1.The application dated 19.10.2019 is dismissed with costs to the Client/Respondent
  2. 2.The application dated 18.11.2021 is marked as SPENT
  3. 3.All the three Misc. Appl. files Nos. 94, 95 and 96 of 2019 stand as closed
  4. 4.This ruling is to be placed on each of the three files

Authorities

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Legislation

  • Civil Procedure ActSections 1A and 1B

Cases cited (2)

  • Flora N. Wasike V Destino Wamboko
    (1988) eKLR
  • Republic v Paul Kihara Kariuki, Attorney General & 2 Others ex parte Law Society of Kenya
    (2020)
Jurisdiction invoked
Section 1A and 1B of the Civil Procedure Act (case management; original civil jurisdiction)

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, "Andrew & Steve Advocates v Paragon Electronics Limited [2022] KEELC 1507 (KLR)", Case Analysis (2022). Miscellaneous Application Nos. 94, 95 and 96 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1507/eng@2022-02-09

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