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JudgmentINFAMA LIMITED VS ASTROL PETROLEUM COMPANY LIMITED5 min read

INFAMA LIMITED VS ASTROL PETROLEUM COMPANY LIMITED

High Court at Milimani High Court · · P. J. Otieno

  1.  The Applicant has approached the court seeking in the main that it be granted the leave to appeal out of time. However, the appellant seek several other orders in the motion dated 15/8/2023 framed as follows:
  2. The Appeal be allowed
  3. The Judgment in favour of the Respondent and the consequential orders be set aside.
  4. The costs of this Appeal be provided for
  5. The grounds proffered to premise the application are given to be that even though parties entered a consent judgment in the sum of Kshs. 813,813/=, the Respondent had taken out a warrant in the sum of Kshs. 1,803,780/= which is considered to be beyond the jurisdiction of the small claims court hence the consent judgment should be set aside.
  6. At the trial court, parties entered a consent by which judgment was entered for the Respondent against the Applicant in the sum of Kshs. 813,813/= with interest thereon at 3% per month from 01/07/2018 till 14/6/2022 as well as costs of the suit.
  7. Pursuant to the consent a decree and certificate of costs were issued in the respective sums of Kshs. 1,989,773/= and Kshs. 72,600/=. It is common ground that the decree was agreed and the applicant paid part of the decree by the agreed monthly instalments till the month of March and April 2023 when there was a default and the Respondent took out execution proceedings pursuant to warrants of attachment and sale seeking recovery of the sum of Kshs. 1,803,718/=.
  8. That sum surprised the Applicant who contended that its obligation in the decree was limited to the sum of Kshs. 813,813/= whose substantial part had been paid.
  9. The Applicant then took the advice and view that it only consented to a judgment against him in the liquidated sum and not interest at 3% per month which then outstripped the jurisdiction of the small claims court. It is contended that the Applicant’s counsel never consented to the interest at 3% for which reason the Applicant considers it necessary to challenge the judgment but time has lapsed hence the need to have the time enlarged. It was lastly asserted that the Applicant had so far paid to the Respondent a sum of Kshs. 600,000/= hence it stood to suffer no prejudice even if the consent was set aside.
  10. The application was resisted by the Respondent who filed the Replying Affidavit sworn by Wangui Mutahi. The gist of the Replying Affidavit was that the consent judgment was negotiated and drawn by counsel and based on proposals by the Appellant’s counsel, the same was adopted by the court and a decree settled and issued which decree was served upon the Applicant’s advocate who then was well appraised of the terms of the consent as reduced into the decree. It was underscored that the decree had been partially settled by the agreed instalments amounting to Kshs. 585,000/= by the time of filing the application.
  11. The cap of the pecuniary jurisdiction of small claims court of Kshs. 10,000,000/= was submitted to exclude costs and interests and lastly that that courts are slow to disturb consent orders between the parties and that in this instance the consent allowed the Respondent to institute execution proceedings in the event of default.
  12. By directions of 23/10/2013, the court ordered parties to file and exchange submissions, which directions were duly complied with and the court has read and benefited from the submissions filed and expresses gratitude to the counsel.
  13. Having perused the Motion, the Replying Affidavit and the submissions filed, the court is clear in its word that the only prayer that calls for its determination is the prayer for extending time to appeal. The court takes that view well convinced that this being a fresh file without a judgment, prayer 2 is wholly superfluous just like it is most unexpected that a court would issue an injunction in a miscellaneous file to stop or scuttle the process of lawful execution issued in a separate substantive file and pursuant to a consent order.
  14. On the same appreciation, this being a miscellaneous application, the court cannot go to the merits of the consent order and grant final order of setting it aside. Setting aside, as a remedy, is only available before the court which issued the order and only when established grounds of setting aside are demonstrated to exist. Short of that, this court may only set aside the orders of the lower court upon hearing an appeal on its merits. It is neither conceivable nor acceptable that any court sets aside substantive orders, by another court, worst of all, a consent order in a miscellaneous file. For those reasons, the court finds and holds that prayers 2, 3 and 4 cannot be granted and are thus dismissed.
  15. On the prayer for leave to appeal out of time, the court’s basic learning is that only a party with a right of appeal has the standing to seek extension of time and in such an application he is duty bound to explain the delay and satisfy court that the delay is not inordinate.
  16. In this matter, the judgment sought to be appealed against was entered by consent. The law under Section 67(2) Civil Procedure Act says, in no ambiguous words that ‘no appeal shall lie from a decree passed by the court with the consent of the parties.
  17. The rationale of that inhibition in the application of the principle of law that parties have the right and autonomy to contract on all disputes the only limit being that a consent being an agreement can be upset by another consent or can be set aside by court if a party to the agreement satisfies the court that an agreement was affected by a vitiating factor.
  18. In this matter, however, the question of legality or validity of the consent judgment has not been appropriately raised and it is not ripe for consideration by the court.
  19. It is however, sufficient for this court that the judgments ought to be challenged on appeal was entered with a consent of the parties and there is no right of appeal.  It would be futile to extend time for an appeal to be filed contrary to Section 67 of the Civil Procedure Act.
  20. For that sole reason, the application seeking extension of time to appeal is determined to be bereft of merit and is thus dismissed with costs.

Dated, signed and delivered at Nairobi this 22nd day of March, 2024