Ruling
1. Bokhol Transporters Limited was the 2nd defendant in Makindu SPMCC E098 of 2021.2. It filed an application dated 2/4/2024 seeking the setting aside of a consent judgment dated 11/7/2023 and for the suit to start de novo.
3. The record shows that the court in determining the matter stated:
Whether this honourable court should stay, set aside and or vary the consent dated 11th July 2023 and judgment entered on 14th December 2023. – As per the court records, a consent dated 11th July 2023 was filed in court on 12th July 2023. The said consent was duly signed by the firm of AGN Kamau for the 1st and 2nd defendant and the firm of Mutunga & Muindi & Company advocates for the plaintiff. The said consent was adopted as an order of the court on 12th July 2023. A judgment was delivered in respect to this case on 14th December 2023 with parties being granted 30 days right of appeal. Both were represented when the judgment was delivered.
It was the plaintiff/respondent submissions that the 2nd defendant only rushed to this court in order to frustrate the execution process pretending they were never served with summons and they did not know about this case and that they later on changed tune alleging they had not instructed the firm of advocates to represent them.
The defendants were properly served and indeed filed a Memorandum of Appearance dated 20th April 2022. The issue of legal representation by the firm of A.G.N Kamau in this matter prior to judgment raised by the applicant to me seems like an afterthought but in any in the event if the applicant has any concerns about the said firm, there is a legal procedure to follow to address such concerns as noted by the plaintiff in his submissions.
In this matter herein, I find no reason to stay, set aside and or vary the consent dated 11th July 2023 and judgment entered on 14th December 2023 by Hon. J.D Karani who has since been transferred from this station. In the event the applicant is dissatisfied with any orders issued herein, the proper procedure is to file an appeal.
4. After stating the above the trail court declined to start the matter de novo.
5. Aggrieved by the ruling the applicant filed this appeal on the following grounds of appeal:
1) That the learned magistrate erred in law and in fact in failing to find that the 1st respondent had entered into an agreement with the 2nd respondent together with the latter’s insurer, under which the 1st respondent has received in part the decretal sum, and continues to receive monies in accordance with the agreement between them.
2) That the learned magistrate erred in law and in fact in failing to find that the 1st and 2nd respondent’s execution process against the applicant are acts in perpetuation of a fraudulent scheme, and are geared to benefit the 1st respondent beyond the value of the decretal sum.
3) That the learned magistrate erred in law and in fact in failing to find that the appellant did not instruct the advocates or firm of advocates that purported to act for it in the suit, the latter of whom proceeded to record a consent prejudicial to the interests of the appellant.
4) That the learned magistrate erred in law and in fact in failing to find that the 1st respondent did not serve the appellant with pleadings and summons and instead concocted a plan with the 2nd respondent’s insurer to create an imprimatur of valid legal proceedings to the exclusion of the appellant.
5) That the learned magistrate erred in law and in fact in failing to find that the subject motor vehicle which allegedly caused the accident on or about 8th august 2018 does not belong to the appellant as the same is, by evidence, the exclusive property of the 2nd respondent.
6) That the learned magistrate erred in law and in fact in failing to find that there was no employment relationship between the appellant and the 2nd respondent, and no evidence of beneficial relationship to establish a nexus upon which suit could be sustained.
7) That the learned magistrate erred in law and in fact in failing to find that other than the 1st respondent’s failure to serve summons and primogeniture pleadings, the 1st respondent failed to serve other crucial documents upon which execution could be premised, viz a decree, pleadings relating to multiple applications made in court, in non-compliance with Order 5 Rule 3 of the Civil Procedure Rules, 2010.
8) That the learned magistrate erred in law and in fact in proceeding on the presumption that the erroneous belief that the appellant had admitted liability, yet they did not participate in the proceedings.
9) That the learned magistrate erred in law and in fact in failing to appreciate that the respondents deliberately concealed material facts relating to the dispute, as the insurance company that purportedly gave instructions on behalf of the appellant had no contractual relations with the appellant and at no time did the latter engage it.
10) That the learned magistrate erred in law and in fact in failing to find that the alleged consent judgment date 11th July 2023 and filed in court on 12th July 2023 was borne out of alleged representation by Messrs AGN Kamau Advocates, who were not properly on record for the appellants, they having NOT been instructed by the appellant to represent it.
6. The memorandum of appeal is accompanied by Notice of Motion dated 7/6/2024 seeking;
1) Spent
2) Spent
3) Spent
4) This honourable court be pleased to order a stay of execution of the judgment dated 11th July 2023, filed in court on 12th July 2023 and entered on 14th December 2023 and decree of the principal Magistrate’s court at Makindu in Civil Suit Number E098 of 2021 and all consequential orders granted or issued therein, pending hearing and determination of the appellant’s intended appeal.
5) The costs of this application in the cause.
7. The grounds for the application are on its face and the affidavit sworn by Yassin Mohammed Salat inter alia that :-
a) The Principal Magistrate’s Court at Makindu dismissed with costs the appellants’ application to set aside judgment dated 11th July 2023, filed in court on 12th July 2023 and entered on 14th December 2023 and decree of the Principal Magistrate’s Court at Makindu in Civil Suit No. E098 of 2021.
b) The primogenital judgment condemned the applicant with a decree plus costs and interests through a suit to which it ought not to have been a party in the first place.
c) The respondents have actively engaged the 2nd respondent’s insurer and secured some money in partial satisfaction of the decretal sum, and they have also entered into a payment plan under which the said insurer would satisfy the balance of the decretal sum.
d) The execution process against the applicant is therefore the 1st respondent’s attempt to have a second bite at the cherry, but a wrong one at that, hence the need for this honourable court’s intervention.
e) The appeal is an arguable one with high chances of success and a such should be heard and determined on its merit.
f) Further, if the execution proceeds, hearing and determination of the intended appeal will be rendered an exercise in futility and of more academic value.
g) The applicant is ready and will deposit in court Kshs.100,000.00 as security for costs, which sum is sufficient in the circumstances.
h) This application has been filed expeditiously without unreasonable delay, and the intended appeal is not frivolous.
8. The decretal sum is set out as Kshs. 2,968,648/= and auctioneer’s fees of Kshs. 541,362 if paid to the 1st respondent will likely not be recoverable.
9. The plaintiff/respondent filed a replying affidavit sworn on 3/7/2024 in which he deponed inter alia that the applicant had appointed a firm of advocates who had entered into the consent judgment on their behalf. He has annexed a letter from AGN Kamau Advocates referring him to a doctor for a second medical report.
10. Parties filed submissions.
11. I have considered the submissions in their totality.
12. The only issue is whether the application has any merit.
13. The applicant’s position has been that they never appointed the firm of AGN Kamau to act for them. I have noted that the process always indicates – to be served upon AGN Kamau & Company Advocates – I have not seen any rejoinder from AGN Kamau to confirm or deny this position.
14. However from the plaintiff/1st respondent own annexure it is clear that the firm of AGN Kamau was acting for Occidental Insurance Company Limited. In the letter referring the plaintiff/1st respondent to the 2nd medical opinion – supplied by the plaintiff/1st respondent – it states
“Our client Occidental Insurance Co. Ltd has instructed us to refer the plaintiff to your clinic for second examination in the above referenced matter wherein we are on record for the defendants” they further quote the claim number for the Doctor’s reference.
15. From this letter one can see that the instructing client was the Insurance Company. If the Insurance Company was making payments as averred by the applicant – could the plaintiff/1st respondent proceed to execute against the insured?
16. Without going into the details of the submissions which appear to argue the appeal, the fact that this a question that begs from the set of facts as presented is sufficient reason to allow the application – so that the issues therein can be determined.
17. In addition, the applicant avers that the whole sum has been settled by the insurance – if that is the position then – why proceed to execute against the insured?
18. I have also considered that the appeal appears not to be frivolous and is arguable.
19. In view of the foregoing and the fact that the applicant has offered security for costs, I allow the application for stay pending the hearing and determination of this appeal or the settlement of the matter out of court.
20. In conclusions:
i. An order of stay of execution of the judgment and decree of the principal Magistrate’s court at Makindu MCCC No. E098 of 2021 and all consequential orders be and is hereby issued pending the hearing and determination of the appeal.
ii. The applicant will file the Record of Appeal and serve within 30 days hereof.
iii. The applicant to deposit the sum of Kshs. 200,000/= as security for costs within 30 days hereof.
iv. In default, the stay will lapse – the application will stand dismissed with costs to the 1st plaintiff/respondent. Otherwise, costs of this application will abide the appeal.
v. Orders accordingly
Dated, signed and delivered via CTS this 14th day of March 2025
Mumbua T Matheka
Judge
CA Ms. Nelima
Mr. Mwachofi appeared for applicant/appellant
Mr. Muindi appeared for 1st Respondent