REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL & TAX DIVISION
HC COMM CASE NO. E737 OF 2021
GOSSAMER CROSSING EAST AFRICA LTD.………………1ST PLAINTIFF
SUZANE JANEBLECHER
(Suing on her own behalf and on behalf of
GOSSAMER CROSSING EAST AFRICA LTD.………………2ND PLAINTIFF
VERSUS
GOSSAMER CROSSING INC……………….………………1ST DEFENDANT
BENJAMIN CHARLES FOLGER…………….……………….2ND DEFENDANT
AND
WING SPAN INVESTMENT LTD….………………...…….INTERESTED PARTY
RULING
1. This Ruling is on a Notice of Motion Application by WING SPAN INVESTMENT LTD the Interested Party herein, dated 10th February 2023. The same was brought under the provisions of section 80 of the Civil Procedure Act Cap 21 Laws of Kenya, as well as Order 1 Rule 10 and Order 45 Rule 1 of the Civil Procedure Rules 2010. It is supported by the Supporting Affidavit of MOHAMMED ALI AYOOB NOORMOHAMMED, sworn by him on 10th February 2023.
2. The Application proceeded by way of written submissions. Only the Plaintiffs and the Interested Party filed submissions. The Defendants did not. When the Application came up for mention on 8th May 2023, Mr Sigilai Advocate holding brief for Mr Singh Gitau for the Defendants informed the Court that the Defendants have chosen not to file any submissions on it.
3. Therefore, only Plaintiff’s and the Defendant’s submissions are on record. The Plaintiff’s submissions are dated 30th March 2023, while the Interested Party’s are dated 16th March 2023. Both parties accompanied their respective submissions with a list and copies of the legal authorities they are relying on in this Application.
4. The Application has sought the following orders.
(1) (Already granted).
(2) (Already granted).
(3) That this honourable court be pleased to set aside the consent order it issued on 24th August 2021 by which it restrained the Defendants from transferring ownership of the aircraft previously registered as N9017M0 unless the sum of USD 901,827= the proceeds of any sale of it is deposited in the joint interest-earning account of the advocates.
(4) That costs of this Application be provided for.
5. Prayer (1) and (2) having been granted, only prayer (3) and (4) have remained of this Application to be determined by this Court.
The Applicant’s Facts
6. The summary of the Applicant’s facts in the Application is that the Interested Party bought the said aircraft on 19/8/2022 from ITHVENRAM LIMITED who had on 21/12/2020 bought it from the 1st Defendant. By the time of the purchase by the Interested Party, there was in force a court order of this Court and by which the Defendants had been restrained from transferring ownership of the aircraft previously registered as N9017M0 unless the sum of USD 901,827= the proceeds of any sale of it is deposited in the joint interest-earning account of the advocates. Curiously, the Plaintiffs and the Defendants have not disclosed to this Court on this Application whether such proceeds have ever been deposited as ordered in the said consent Order.
7. The same was a consent between recorded herein between the Plaintiffs and the Defendants, and which this Court on 24th August 2021 adopted as its order. By the time of the Interested Party’s purchase of the subject aircraft the order was still in force.
8. Notably, the order prohibited transfer of the title of the said aircraft. Notably also, it did not prohibit sale, and instead provided that in case of sale, the sum of USD 901, 827= of the proceeds be deposited in the joint account of the Plaintiffs’ Advocate and the Defendants’ Advocate. Interestingly, from the facts stated in the Application, and noted above, the 1st Defendant had 8 months before then already on 21/12/2020 sold the said aircraft to ITHVENRAM LIMITED.
The Response(s)
9. Only the Plaintiffs responded to the Application. The Defendants did not. The Plaintiffs opposed through the Replying Affidavit of the 2nd Plaintiff SUZZANE BELCHER, sworn by her on 2nd March 2023. The said Affidavit has argued that the Application is misconceived, and bad in law, as that the Applicant has not met the legal threshold for challenging a consent order. Which they argue is synonymous with the one for challenging a contract between parties.
Analysis and Determination
10. The Application is seemingly a contest between the Interested Party and the Plaintiffs, as the Defendants neither opposed it, nor filed any submissions on it. Upon reading the Application, its Supporting Affidavit and annextures, as well as the Plaintiffs’ response thereto, together with the rival submissions by the parties, the Court has distilled the following issues for its determination:
(a) Whether this Court has jurisdiction on the aircraft the subject of this suit.
(b) Whether the Consent Order of this Court dated 24/8/2022 was obtained by material non-disclosure on part of the Plaintiffs and the Defendants.
(c) Whether the Interested Party not having been a party to the consent has the legal capacity (locus standi) to apply for its setting aside.
(d) Whether the said Consent Order should be set aside.
A. Does this Court Have Jurisdiction Over the Aircraft?
11. The answer to this is an emphatic yes. The aircraft being within the Republic of Kenya, this Court has jurisdiction on it. This court being the High Court of Kenya has under Article 165 (3) of the Constitution unlimited original jurisdiction in criminal and civil matters. Subject only to the exception stipulated in Article 165 (5). The proviso is with regard to matters falling under Article 162(2) and Article 163(3) of the Constitution of Kenya 2010; i.e for matters that Article 162 (2) has reserved for specialized courts (the Environment and Land Court- the ELC, and the Employment and Labour Related Court)- the ELRC, and those that Article 163 (3) has reserved for the Supreme Court.
12. In so holding, this Court is not assuming non-existent jurisdiction nor clothing itself with jurisdiction it has not. It simply is asserting jurisdiction that it naturally and legitimately possesses under Kenya law. I am neither in doubt as to whether I have jurisdiction that aircraft, nor am I mistaken on this. Therefore, any contrary assertion logically fails. Similarly, my sister Okwani J in her Ruling herein of 24/11/2022 affirmed the court’s jurisdiction, hence the issue of jurisdiction is res judicata, and can neither be re-opened nor revisited.
B. Was There Material Non-Disclosure When Recording the Consent and Obtaining the Consent Order?
13. The answer to this question can only be in the affirmative. This can be deciphered from the pleadings and conduct of the parties in the cause of this litigation; especially the Defendants. In litigation and particularly at equity, the unspoken word can speak louder than the spoken word. Equity detests unclean hands; hence he comes to equity must come with clean hands. Similarly, he who seeks equity must do equity. Gone are the days when parties tried to be clever with the courts. Courts have become wiser and wiser, and no Court will suffer any litigant to dethrone it or pull a rug under its feet.
14. After this suit was filed, the Plaintiffs and the Defendants quickly entered into a consent that purported to give the Plaintiffs certain entitlement over the subject aircraft. To be specific, access to USD 901, 827= of the proceeds of “any sale of the aircraft”. It also restrained the Defendants from transferring ownership of the aircraft until they have deposited that amount in an interest earning account in the joint names of the Plaintiffs’ Advocates on the one part and the Defendants’ Advocates on the other.
15. This was on 24th August 2021. However, unbeknownst to the Court, the 1st Defendant had by an Aircraft Purchase Agreement of 21st December 2020 (which was 9 months before the Consent) sold the aircraft to ITHVENRAM LIMITED. This was a material fact that the two parties to the consent (the Plaintiffs and the Defendants) needed to disclose to the Court at the time of adopting the said Consent, and which fact the 1st Defendant while leading the Court to adopt the said consent did not disclose.
16. The 1st Defendant did this willfully and knowing so well that the said consent and the consequent court order would affect another entity or entities that were neither party to the suit nor the purported consent; in particular the said ITHVENRAM LIMITED who unaware of the said Consent Order a year later sold the aircraft to WING SPAN INVESTMENT LTD the Interested Party.
17. While these are facts as stated by the latter in this Application, the 1st Defendant who would naturally be expected to controvert them, has not controverted them or has safely avoided commenting on them. And neither has by its non-opposition (actually acquiescence) and non-participation in this Application opposed the Application. This is as curious as it is queer and suspect; because by this Application the Interested Party is seeking to set aside a Consent to which the 1st Defendant is a party, yet it elects to say nothing about it.
18. While silence does not automatically mean or amount consent, nothing stops a prudent court from making an inference from certain instances of litigational silence by a litigant such as is the case here. I must emphasize that the right to silence is a creature of criminal law, designed to protect an accused person from inter alia, self-incrimination. It does not apply in civil litigation, for instance in instances such as this where the evidentiary burden has shifted to the particular litigant, and it chooses to stay mute. A time comes, and circumstances arrive, when as a litigant you must just say something. At such a time and in such circumstances, the die is cast and a litigant can no longer take refuge or comfort in silence.
19. By their inequitable conduct in this litigation the Defendants have themselves dived under the bus. Any party that obtains any relief through connivance, inequity or other unconscionable design, and in the absence of a crucial party, disentitles himself to the relief. And the Court may on becoming aware of this fact, discharge, vacate, or set aside the same without much ceremony.
20. Equity will not suffer a wrong to be without a remedy, hence there can be no wrong without a remedy. Besides, equity will not allow a party to benefit from his wrong, or retain a benefit he has earned through a wrong, or wrongful act or conduct. There is also the Latin maxim Ex turpi causa non oritur action (whose English translation is that no court will lend its aid to a man who founds his cause of action upon an immoral or illegal act). This principle was cited with approval in Royal Media Service Ltd v. AG & 2 Others [2013] eKLR, and was stated in AG v. Sunderji Trading as “Crystal Ice Cream” [1986] KLR 67.
C. Can the Court Allow a person or entity that was not a party to a Consent, to Challenge It?
21. The other issue for determination as arising from the rival submissions by the Plaintiffs and the Interested Party, is the question whether the Interested Party not having been a party to the impugned consent has the legal capacity (locus standi) to apply for its setting aside.
22. On this the Applicant says it does, while the Plaintiffs are of the firm stand that the Interested Party lacks capacity to do so, and that even the parties to the consent themselves cannot successfully set it aside unless they satisfy the stringent legal threshold/criteria that has been set by various courts in similar cases. These include: Flora N. Wasike v. Destimo Wamboko [1988] eKLR, Hirani v. Kassam (1952) 19 EACA 131 at 134, Brooke Bond Liebig v. Mallya [1975] EA 266 at 269, and Kenya Commercial Bank Ltd v. Specialized Engineering Co. Ltd (1982) KLR 485.
23. The legal threshold running in all these legal authorities is that a consent recorded between the parties can only be set aside on such grounds as would set aside a contract entered into by the parties. This was summarized in the Brooke Bond Liebig case (supra) by Law Ag P in the following words: “A court cannot interfere with a consent judgment [order] except in circumstances as would afford good ground for varying or rescinding a contract between the parties.” These factors include (but is not limited to) misrepresentation, undue influence, duress, fraud, collusion, illegality, and being contrary to public policy.
24. That is a general principle and it applies to the parties to the consent themselves. For those who are not the parties to the consent, the rules should as of necessity change, but the window for challenge remains. Therefore the defence raised by the Plaintiffs will not avail. My reasoning on this is anchored in established legal principles, as well as the doctrines of equity, and which doctrines apply in Kenya by dint of section 3 (1) of the Judicature Act Cap 8 Laws of Kenya.
25. In Hirani v. Kassam (Supra), it was observed that a consent can be challenged by way of a review. In Kenya, the power of review in civil proceedings is provided for by section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules aforesaid. Which the Applicant has in this Application properly cited as enabling his plea.
26. As a general rule, a consent is binding upon the parties to it. As to whether it is binding on the whole world is debatable and requires some interrogation. Whereas a consent should ipso facto primarily concern only the parties to it, I am of the profusely humble view that any other person or entity as may demonstrate being affected by the consent or having a legitimate interest in it, or having a legally recognizable relation with the subject matter of the consent, may challenge it.
27. Such a person or entity will have to first apply to be joined in the suit as Defendant or Interested Party or Affected Party (as the case may be). Then thereafter urge the court to vacate, vary or otherwise set aside the consent. This is the route the Interested Party has trodden, and it is perfectly within the bounds of the substantive as well as procedural law.
28. Applying these criteria to the instant case, the Applicant Interested Party has prima facie demonstrated the following: (a) That it was not made a party to this suit, hence was totally unaware of it; (b)That the subject matter of this suit and the said consent was the aircraft it had bought from a third party called ITHVENRAM LIMITED nine months before that consent hence the equitable owner thereof; (c) That the impugned consent order was suspect, as was obtained without the parties disclosing material facts (non-disclosure of material facts) to the court, and while suppressing such material facts (suppression of material facts); (d) That had the Court been possessed of those material facts, it would not have adopted the said consent as a court order; (e) That the consent having been on the said aircraft has affected the aircraft and its ownership, as its user and enjoyment; and lastly (f)That it is the Interested Party who is in possession of the aircraft.
29. In Signature Tours & Travels Limited v. National bank of Kenya Limited [2017] eKLR, the Court of Appeal gave the following definitional criteria:
“The material facts are those which it is material for the Judge to know in dealing with the Application made; materiality is to be decided by the court and not the assessment of the applicant or his legal advisers.”
30. The principles for setting aside unconscionable contracts should be applied mutate mutandis to setting aside unconscionable consents such as the one the subject of this Application. Which was between the Plaintiffs and the Defendants, and consequently adopted on 24/8/2021 as an order of this court.
Whether the Said Consent Should Be Set Aside.
31. This Court has considered the Application, the Plaintiff’s opposant response thereto, the rival filed submissions of the parties, as well as the Defendants’ non-opposition and non-participation and its unconscionable and inequitable conduct throughout these proceedings. It has also considered the applicable law as well as the established legal principles, including the doctrines of equity.
32. For the reasons aforegoing, this Court has arrived at the conclusion that the Interested Party has in this Application successfully persuaded it to find that the consent that the Plaintiffs and the Defendants recorded on 24/8/2021 and its subsequent adoption by this Court into a court order, should not be left undisturbed.
33. The said court order issued herein on 24/8/2021 is therefore hereby vacated and set aside, and in its place substituted the following ORDERS:
(a) Pending the hearing and final determination of this suit, the Kenya Civil Aviation Authority (KCAA) is hereby restrained from registering in Kenya and/or licensing to operate in Kenya, Aircraft Registration N9017M the subject of this suit.
(b) The Defendants to deposit in this Court the sum of USD 225,000= as security for its debt to the Plaintiffs, and a further Ksh USD 25,000= as security for the Interested Party’s loss of user of the said aircraft since the aircraft is in the latter’s possession.
(c) These sums be deposited within 60 days.
(d) This suit be listed for hearing within 60 days and be heard on a priority basis and concluded within 150 days.
(e) The Application having succeeded, the Interested Party shall have costs, to be paid by the Defendants.
34. The Court decided not to at this preliminary stage delve into the ownership of the aircraft. That shall be determined after the suit has gone to full trial, and the parties’ rival evidence is subjected to cross-examination and rules of evidence at the hearing of the suit. For now the affidavit evidence on record cannot provide a firm and legally sufficient enough foundation for final orders or a final finding on ownership of the said aircraft.
35. At this time the court is merely preserving the aircraft as the subject matter of the suit, as well as maintaining the legitimate and equitable status quo, and not the inequitable one that by the Defendants have illegitimately engineered for their unconscionable benefit.
DATED and DELIVERED at NAIROBI this 29th day of May 2023.
PROF NIXON SIFUNA
JUDGE
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL & TAX DIVISION
HC COMM CASE NO. E737 OF 2021
GOSSAMER CROSSING EAST AFRICA LTD.………………1ST PLAINTIFF
SUZANE JANEBLECHER
(Suing on her own behalf and on behalf of
GOSSAMER CROSSING EAST AFRICA LTD.………………2ND PLAINTIFF
VERSUS
GOSSAMER CROSSING INC……………….………………1ST DEFENDANT
BENJAMIN CHARLES FOLGER…………….……………….2ND DEFENDANT
AND
WING SPAN INVESTMENT LTD….………………...…….INTERESTED PARTY
RULING
1. This Ruling is on a Notice of Motion Application by WING SPAN INVESTMENT LTD the Interested Party herein, dated 10th February 2023. The same was brought under the provisions of section 80 of the Civil Procedure Act Cap 21 Laws of Kenya, as well as Order 1 Rule 10 and Order 45 Rule 1 of the Civil Procedure Rules 2010. It is supported by the Supporting Affidavit of MOHAMMED ALI AYOOB NOORMOHAMMED, sworn by him on 10th February 2023.
2. The Application proceeded by way of written submissions. Only the Plaintiffs and the Interested Party filed submissions. The Defendants did not. When the Application came up for mention on 8th May 2023, Mr Sigilai Advocate holding brief for Mr Singh Gitau for the Defendants informed the Court that the Defendants have chosen not to file any submissions on it.
3. Therefore, only Plaintiff’s and the Defendant’s submissions are on record. The Plaintiff’s submissions are dated 30th March 2023, while the Interested Party’s are dated 16th March 2023. Both parties accompanied their respective submissions with a list and copies of the legal authorities they are relying on in this Application.
4. The Application has sought the following orders.
(1) (Already granted).
(2) (Already granted).
(3) That this honourable court be pleased to set aside the consent order it issued on 24th August 2021 by which it restrained the Defendants from transferring ownership of the aircraft previously registered as N9017M0 unless the sum of USD 901,827= the proceeds of any sale of it is deposited in the joint interest-earning account of the advocates.
(4) That costs of this Application be provided for.
5. Prayer (1) and (2) having been granted, only prayer (3) and (4) have remained of this Application to be determined by this Court.
The Applicant’s Facts
6. The summary of the Applicant’s facts in the Application is that the Interested Party bought the said aircraft on 19/8/2022 from ITHVENRAM LIMITED who had on 21/12/2020 bought it from the 1st Defendant. By the time of the purchase by the Interested Party, there was in force a court order of this Court and by which the Defendants had been restrained from transferring ownership of the aircraft previously registered as N9017M0 unless the sum of USD 901,827= the proceeds of any sale of it is deposited in the joint interest-earning account of the advocates. Curiously, the Plaintiffs and the Defendants have not disclosed to this Court on this Application whether such proceeds have ever been deposited as ordered in the said consent Order.
7. The same was a consent between recorded herein between the Plaintiffs and the Defendants, and which this Court on 24th August 2021 adopted as its order. By the time of the Interested Party’s purchase of the subject aircraft the order was still in force.
8. Notably, the order prohibited transfer of the title of the said aircraft. Notably also, it did not prohibit sale, and instead provided that in case of sale, the sum of USD 901, 827= of the proceeds be deposited in the joint account of the Plaintiffs’ Advocate and the Defendants’ Advocate. Interestingly, from the facts stated in the Application, and noted above, the 1st Defendant had 8 months before then already on 21/12/2020 sold the said aircraft to ITHVENRAM LIMITED.
The Response(s)
9. Only the Plaintiffs responded to the Application. The Defendants did not. The Plaintiffs opposed through the Replying Affidavit of the 2nd Plaintiff SUZZANE BELCHER, sworn by her on 2nd March 2023. The said Affidavit has argued that the Application is misconceived, and bad in law, as that the Applicant has not met the legal threshold for challenging a consent order. Which they argue is synonymous with the one for challenging a contract between parties.
Analysis and Determination
10. The Application is seemingly a contest between the Interested Party and the Plaintiffs, as the Defendants neither opposed it, nor filed any submissions on it. Upon reading the Application, its Supporting Affidavit and annextures, as well as the Plaintiffs’ response thereto, together with the rival submissions by the parties, the Court has distilled the following issues for its determination:
(a) Whether this Court has jurisdiction on the aircraft the subject of this suit.
(b) Whether the Consent Order of this Court dated 24/8/2022 was obtained by material non-disclosure on part of the Plaintiffs and the Defendants.
(c) Whether the Interested Party not having been a party to the consent has the legal capacity (locus standi) to apply for its setting aside.
(d) Whether the said Consent Order should be set aside.
A. Does this Court Have Jurisdiction Over the Aircraft?
11. The answer to this is an emphatic yes. The aircraft being within the Republic of Kenya, this Court has jurisdiction on it. This court being the High Court of Kenya has under Article 165 (3) of the Constitution unlimited original jurisdiction in criminal and civil matters. Subject only to the exception stipulated in Article 165 (5). The proviso is with regard to matters falling under Article 162(2) and Article 163(3) of the Constitution of Kenya 2010; i.e for matters that Article 162 (2) has reserved for specialized courts (the Environment and Land Court- the ELC, and the Employment and Labour Related Court)- the ELRC, and those that Article 163 (3) has reserved for the Supreme Court.
12. In so holding, this Court is not assuming non-existent jurisdiction nor clothing itself with jurisdiction it has not. It simply is asserting jurisdiction that it naturally and legitimately possesses under Kenya law. I am neither in doubt as to whether I have jurisdiction that aircraft, nor am I mistaken on this. Therefore, any contrary assertion logically fails. Similarly, my sister Okwani J in her Ruling herein of 24/11/2022 affirmed the court’s jurisdiction, hence the issue of jurisdiction is res judicata, and can neither be re-opened nor revisited.
B. Was There Material Non-Disclosure When Recording the Consent and Obtaining the Consent Order?
13. The answer to this question can only be in the affirmative. This can be deciphered from the pleadings and conduct of the parties in the cause of this litigation; especially the Defendants. In litigation and particularly at equity, the unspoken word can speak louder than the spoken word. Equity detests unclean hands; hence he comes to equity must come with clean hands. Similarly, he who seeks equity must do equity. Gone are the days when parties tried to be clever with the courts. Courts have become wiser and wiser, and no Court will suffer any litigant to dethrone it or pull a rug under its feet.
14. After this suit was filed, the Plaintiffs and the Defendants quickly entered into a consent that purported to give the Plaintiffs certain entitlement over the subject aircraft. To be specific, access to USD 901, 827= of the proceeds of “any sale of the aircraft”. It also restrained the Defendants from transferring ownership of the aircraft until they have deposited that amount in an interest earning account in the joint names of the Plaintiffs’ Advocates on the one part and the Defendants’ Advocates on the other.
15. This was on 24th August 2021. However, unbeknownst to the Court, the 1st Defendant had by an Aircraft Purchase Agreement of 21st December 2020 (which was 9 months before the Consent) sold the aircraft to ITHVENRAM LIMITED. This was a material fact that the two parties to the consent (the Plaintiffs and the Defendants) needed to disclose to the Court at the time of adopting the said Consent, and which fact the 1st Defendant while leading the Court to adopt the said consent did not disclose.
16. The 1st Defendant did this willfully and knowing so well that the said consent and the consequent court order would affect another entity or entities that were neither party to the suit nor the purported consent; in particular the said ITHVENRAM LIMITED who unaware of the said Consent Order a year later sold the aircraft to WING SPAN INVESTMENT LTD the Interested Party.
17. While these are facts as stated by the latter in this Application, the 1st Defendant who would naturally be expected to controvert them, has not controverted them or has safely avoided commenting on them. And neither has by its non-opposition (actually acquiescence) and non-participation in this Application opposed the Application. This is as curious as it is queer and suspect; because by this Application the Interested Party is seeking to set aside a Consent to which the 1st Defendant is a party, yet it elects to say nothing about it.
18. While silence does not automatically mean or amount consent, nothing stops a prudent court from making an inference from certain instances of litigational silence by a litigant such as is the case here. I must emphasize that the right to silence is a creature of criminal law, designed to protect an accused person from inter alia, self-incrimination. It does not apply in civil litigation, for instance in instances such as this where the evidentiary burden has shifted to the particular litigant, and it chooses to stay mute. A time comes, and circumstances arrive, when as a litigant you must just say something. At such a time and in such circumstances, the die is cast and a litigant can no longer take refuge or comfort in silence.
19. By their inequitable conduct in this litigation the Defendants have themselves dived under the bus. Any party that obtains any relief through connivance, inequity or other unconscionable design, and in the absence of a crucial party, disentitles himself to the relief. And the Court may on becoming aware of this fact, discharge, vacate, or set aside the same without much ceremony.
20. Equity will not suffer a wrong to be without a remedy, hence there can be no wrong without a remedy. Besides, equity will not allow a party to benefit from his wrong, or retain a benefit he has earned through a wrong, or wrongful act or conduct. There is also the Latin maxim Ex turpi causa non oritur action (whose English translation is that no court will lend its aid to a man who founds his cause of action upon an immoral or illegal act). This principle was cited with approval in Royal Media Service Ltd v. AG & 2 Others [2013] eKLR, and was stated in AG v. Sunderji Trading as “Crystal Ice Cream” [1986] KLR 67.
C. Can the Court Allow a person or entity that was not a party to a Consent, to Challenge It?
21. The other issue for determination as arising from the rival submissions by the Plaintiffs and the Interested Party, is the question whether the Interested Party not having been a party to the impugned consent has the legal capacity (locus standi) to apply for its setting aside.
22. On this the Applicant says it does, while the Plaintiffs are of the firm stand that the Interested Party lacks capacity to do so, and that even the parties to the consent themselves cannot successfully set it aside unless they satisfy the stringent legal threshold/criteria that has been set by various courts in similar cases. These include: Flora N. Wasike v. Destimo Wamboko [1988] eKLR, Hirani v. Kassam (1952) 19 EACA 131 at 134, Brooke Bond Liebig v. Mallya [1975] EA 266 at 269, and Kenya Commercial Bank Ltd v. Specialized Engineering Co. Ltd (1982) KLR 485.
23. The legal threshold running in all these legal authorities is that a consent recorded between the parties can only be set aside on such grounds as would set aside a contract entered into by the parties. This was summarized in the Brooke Bond Liebig case (supra) by Law Ag P in the following words: “A court cannot interfere with a consent judgment [order] except in circumstances as would afford good ground for varying or rescinding a contract between the parties.” These factors include (but is not limited to) misrepresentation, undue influence, duress, fraud, collusion, illegality, and being contrary to public policy.
24. That is a general principle and it applies to the parties to the consent themselves. For those who are not the parties to the consent, the rules should as of necessity change, but the window for challenge remains. Therefore the defence raised by the Plaintiffs will not avail. My reasoning on this is anchored in established legal principles, as well as the doctrines of equity, and which doctrines apply in Kenya by dint of section 3 (1) of the Judicature Act Cap 8 Laws of Kenya.
25. In Hirani v. Kassam (Supra), it was observed that a consent can be challenged by way of a review. In Kenya, the power of review in civil proceedings is provided for by section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules aforesaid. Which the Applicant has in this Application properly cited as enabling his plea.
26. As a general rule, a consent is binding upon the parties to it. As to whether it is binding on the whole world is debatable and requires some interrogation. Whereas a consent should ipso facto primarily concern only the parties to it, I am of the profusely humble view that any other person or entity as may demonstrate being affected by the consent or having a legitimate interest in it, or having a legally recognizable relation with the subject matter of the consent, may challenge it.
27. Such a person or entity will have to first apply to be joined in the suit as Defendant or Interested Party or Affected Party (as the case may be). Then thereafter urge the court to vacate, vary or otherwise set aside the consent. This is the route the Interested Party has trodden, and it is perfectly within the bounds of the substantive as well as procedural law.
28. Applying these criteria to the instant case, the Applicant Interested Party has prima facie demonstrated the following: (a) That it was not made a party to this suit, hence was totally unaware of it; (b)That the subject matter of this suit and the said consent was the aircraft it had bought from a third party called ITHVENRAM LIMITED nine months before that consent hence the equitable owner thereof; (c) That the impugned consent order was suspect, as was obtained without the parties disclosing material facts (non-disclosure of material facts) to the court, and while suppressing such material facts (suppression of material facts); (d) That had the Court been possessed of those material facts, it would not have adopted the said consent as a court order; (e) That the consent having been on the said aircraft has affected the aircraft and its ownership, as its user and enjoyment; and lastly (f)That it is the Interested Party who is in possession of the aircraft.
29. In Signature Tours & Travels Limited v. National bank of Kenya Limited [2017] eKLR, the Court of Appeal gave the following definitional criteria:
“The material facts are those which it is material for the Judge to know in dealing with the Application made; materiality is to be decided by the court and not the assessment of the applicant or his legal advisers.”
30. The principles for setting aside unconscionable contracts should be applied mutate mutandis to setting aside unconscionable consents such as the one the subject of this Application. Which was between the Plaintiffs and the Defendants, and consequently adopted on 24/8/2021 as an order of this court.
Whether the Said Consent Should Be Set Aside.
31. This Court has considered the Application, the Plaintiff’s opposant response thereto, the rival filed submissions of the parties, as well as the Defendants’ non-opposition and non-participation and its unconscionable and inequitable conduct throughout these proceedings. It has also considered the applicable law as well as the established legal principles, including the doctrines of equity.
32. For the reasons aforegoing, this Court has arrived at the conclusion that the Interested Party has in this Application successfully persuaded it to find that the consent that the Plaintiffs and the Defendants recorded on 24/8/2021 and its subsequent adoption by this Court into a court order, should not be left undisturbed.
33. The said court order issued herein on 24/8/2021 is therefore hereby vacated and set aside, and in its place substituted the following ORDERS:
(a) Pending the hearing and final determination of this suit, the Kenya Civil Aviation Authority (KCAA) is hereby restrained from registering in Kenya and/or licensing to operate in Kenya, Aircraft Registration N9017M the subject of this suit.
(b) The Defendants to deposit in this Court the sum of USD 225,000= as security for its debt to the Plaintiffs, and a further Ksh USD 25,000= as security for the Interested Party’s loss of user of the said aircraft since the aircraft is in the latter’s possession.
(c) These sums be deposited within 60 days.
(d) This suit be listed for hearing within 60 days and be heard on a priority basis and concluded within 150 days.
(e) The Application having succeeded, the Interested Party shall have costs, to be paid by the Defendants.
34. The Court decided not to at this preliminary stage delve into the ownership of the aircraft. That shall be determined after the suit has gone to full trial, and the parties’ rival evidence is subjected to cross-examination and rules of evidence at the hearing of the suit. For now the affidavit evidence on record cannot provide a firm and legally sufficient enough foundation for final orders or a final finding on ownership of the said aircraft.
35. At this time the court is merely preserving the aircraft as the subject matter of the suit, as well as maintaining the legitimate and equitable status quo, and not the inequitable one that by the Defendants have illegitimately engineered for their unconscionable benefit.
DATED and DELIVERED at NAIROBI this 29th day of May 2023.
PROF NIXON SIFUNA
JUDGE