1. What is before this court for determination is the Notice of Motion dated 20th March, 2025 wherein the Applicant is seeking the following orders:
1) …spent.
2) …spent.
3) That, the Consent Order recorded before Hon. Justice J. Chigiti, SC be varied in respect of Order No. 1 that read;
“THAT, the decretal sum of Kshs. 5,889,251.77 be paid within 14 days of today's date”, to read:
“THAT, the decretal sum of Kshs.5,888.526.85 as at 07.05.24 as set out in the Certificate of Order Against Government which shall continue to attract Interest of 14% p.a. until payment in full be paid together with Costs within 14 days of today's date”.
4) That, in failing to pay the decretal sums in full with Interest up-to date, the Respondents be found in Contempt of the Order of 13.03.25.
5) That, this Honourable Court so issue such or further Orders as may be necessary for the ends of justice and/or to prevent abuse of the process of the Court.
6) That, costs of this application be provided.
2. The application is grounded on the facts that Judgment was entered in favor of the Ex Parte Applicant and Decree issued on the principal sums plus Interest of 14% p.a. from 04.08.22 until payment in full.
3. The Respondents were served with the Certificate of Order Against Government indicating the sums owing as Kshs. 5,888,526.85 as at 07.05.24 which sum was endorsed on the Notice to show cause.
4. It is the applicant’s case that interest computation is purely an arithmetic process and not a legal one thus shouldn't have consumed the Court's time and that the Interest that has accrued up to 13.03.25 is Kshs.824,393.80 and up to 07.04.25 is Kshs. 906,833.18.
5. The applicant also argues that the Consent of 13.03.25 didn't in any way howsoever waive the Interest applicable.
6. According to the applicant the Respondents have been unreasonable in refusing to accept that Interest is applicable and are hiding behind the Consent wording of 13.03.25 and ignoring the applicable Decree.
7. It is his submission that Courts will interfere with Consent Orders in the same manner of varying or rescinding Contracts.
8. It is also the Applicant’s submission that consents can be set aside for fraud, collusion, misrepresentation of facts or such other reasons that will enable the Court rescind or vary a Contract and can be set aside on mistaken belief or misrepresentation of material facts.
9. He contends that failure to honour Consent Order within the timeline is good ground to set aside Consent Order.
10. He places reliance on several cases including Nairobi Civil Appeal No.126 of 2005 Munikah & Co. Advocates-Versus- Wedube Estates Limited, Nairobi and ELC Case No 585 of 2013 Mercy Waithira Njeru & Others Vs Daniel Njeru Njoka Mbogo & Others.
The 1st and 2nd Respondent’s case;
11. It is their case that the 1st and 2nd Respondents and the Applicant on 13th March 2025, through their respective counsels, entered into a consent stipulating that Nairobi City County (hereinafter referred to as NCC) shall pay Kshs. 5,889,251.77 within 14 days (by 27thMarch 2025) in full and final settlement of the Decree dated 8th December '2022, with a mention scheduled for 27th March 2025, to confirm compliance.
12. It is their case that the application is legally unsustainable and must fail, as it seeks to unilaterally alter a binding agreement without meeting the stringent threshold for variation under Kenyan law, that is fraud, mutual mistake, or illegality, none of which are present or pleaded.
13. It is argued that compounding of the interest, is impermissible under Section 51(2) of the Advocates Act and Paragraph 7 of the Advocates (Remuneration) Order, which mandate simple interest only unless expressly ordered otherwise, and no such order for compounding exists in the instant suit.
14. The 1st and 2nd Respondents invoke Order 25 Rule 5 of the Civil Procedure Rules, 2010 which provides that a consent order recorded under constitutes a binding agreement, enforceable as a court decree.
15. The 2nd Respondent further argues that Section 21 of the Government Proceedings Act, Cap. 40, mandates a Certificate of Order Against Government as evidence a debt which does not override a subsequent consent order, which, under Section 21(3) and Order25 CPR, takes precedence as a court-adopted settlement.
16. On the issue of contempt, the 1st Respondent asserts that no personal liability can attach to the Respondents, as officers acting in official capacities, as is provided for under Section 13A of the Government Proceedings Act, and any finding of contempt would be manifestly unjust given the Controller of Budget’s.
17. It is their submission that the Applicant’s attempt to reopen a concluded settlement contravenes Article 159(2)(c} of the Constitution, which underscores the importance of finality in dispute resolution.
18. Reliance is placed in the Court of Appeal case Brooke Bond Liebig (K) Ltd v Mallya [1975] EA 266, where the court held that consent orders may only be varied or set aside on grounds of fraud, mutual mistake, or illegality.
19. They further submit that the Applicant's demand for additional interest, based on compounding in violation of Section 26 of the Civil Procedure Act, lacks legal foundation.
20. He urges this Honorable court to dismiss the Notice of Motion dated 20th March 2025 with costs and also grant the following prayers:
a. Affirms that the sum of Kshs. 5,889,251.77 constitutes the full and final obligation of Nairobi City County pursuant to the consent order;
b. Declares that no further interest is payable beyond the settled amount, in view of the legal restriction against compounding interest;
c. Issues such orders as may be necessary to uphold the integrity of the consent order and to prevent abuse of the court process
Analysis and determination:
The issue for determination is whether the Applicant has made out a case for the grant of the orders sought.
21. It is not in doubt that Judgment was entered in favor of the Ex Parte Applicant and Decree issued on the principal sums plus Interest of 14% p.a. from 04.08.22 until payment in full.
22. The Respondents were served with the Certificate of order Against Government indicating the sums owing as Kshs. 5,888,526.85 as at 07.05.24 which sum was endorsed on the Notice to show cause.
23. On 13th March 2025, through their respective counsel, parties entered into a consent stipulating that Nairobi City County (hereinafter referred to as NCC) shall pay Kshs. 5,889,251.77 within 14 days (by 27thmarch 2025) in full and final settlement of the Decree dated 8th December '2022, with a mention scheduled for 27th March 2025, to confirm compliance.
24. It is this this court’s finding that the consent did not set aside, vary or alter the Decree nor waive the interest applicable. That remains due given that parties did not expressly enter that as part of the consent.
25. What parties did when they entered into the consent was to advance towards the settlement of the decree as read alongside the certificate of order.
26. The consent, the Decree and the Certificate express what is due to the Applicant and the Applicant is at liberty to pursue his claim over and above what is in the consent which did not set aside the Decree.
27. In the INational Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another [2001] eKLR The Court of Appeal held:
“A court of law cannot rewrite a contract between the parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded and proved.
Kenya Railways Corporation v Humphrey Omondi Owuor Supreme Court Petition No. 6 of 2019 [2022] KESC 3 (KLR) The Supreme Court held that: “Where parties freely and voluntarily enter into a contract, courts will enforce its terms as written... The court cannot vary those terms merely because one party finds them burdensome.”
28. This court cannot rewrite the consent for the parties.
29. In addressing its mind to the issue of compliance with the terms of the Consent, it is this court’s finding that The Respondent has not advanced proof of payment or compliance with the terms of the consent.
30. It is this court finding that in failing to pay the decretal sums in full with interest up-to date, the Respondents are hereby found to be in Contempt of the Order of 13th March, 2025.
Disposition:
31. The court does not find any justification to amend the Consent.
32. The Respondents are in contempt of the court order of 17th March, 2025.
Order:
1. Prayer 3 is disallowed.
2. The Respondents are found to be in Contempt of the Order that was issued on 17.03.25.
3. The matter shall proceed for mitigation on 14.10.25.
4. Costs to the Applicant.
1) …spent.
2) …spent.
3) That, the Consent Order recorded before Hon. Justice J. Chigiti, SC be varied in respect of Order No. 1 that read;
“THAT, the decretal sum of Kshs. 5,889,251.77 be paid within 14 days of today's date”, to read:
“THAT, the decretal sum of Kshs.5,888.526.85 as at 07.05.24 as set out in the Certificate of Order Against Government which shall continue to attract Interest of 14% p.a. until payment in full be paid together with Costs within 14 days of today's date”.
4) That, in failing to pay the decretal sums in full with Interest up-to date, the Respondents be found in Contempt of the Order of 13.03.25.
5) That, this Honourable Court so issue such or further Orders as may be necessary for the ends of justice and/or to prevent abuse of the process of the Court.
6) That, costs of this application be provided.
2. The application is grounded on the facts that Judgment was entered in favor of the Ex Parte Applicant and Decree issued on the principal sums plus Interest of 14% p.a. from 04.08.22 until payment in full.
3. The Respondents were served with the Certificate of Order Against Government indicating the sums owing as Kshs. 5,888,526.85 as at 07.05.24 which sum was endorsed on the Notice to show cause.
4. It is the applicant’s case that interest computation is purely an arithmetic process and not a legal one thus shouldn't have consumed the Court's time and that the Interest that has accrued up to 13.03.25 is Kshs.824,393.80 and up to 07.04.25 is Kshs. 906,833.18.
5. The applicant also argues that the Consent of 13.03.25 didn't in any way howsoever waive the Interest applicable.
6. According to the applicant the Respondents have been unreasonable in refusing to accept that Interest is applicable and are hiding behind the Consent wording of 13.03.25 and ignoring the applicable Decree.
7. It is his submission that Courts will interfere with Consent Orders in the same manner of varying or rescinding Contracts.
8. It is also the Applicant’s submission that consents can be set aside for fraud, collusion, misrepresentation of facts or such other reasons that will enable the Court rescind or vary a Contract and can be set aside on mistaken belief or misrepresentation of material facts.
9. He contends that failure to honour Consent Order within the timeline is good ground to set aside Consent Order.
10. He places reliance on several cases including Nairobi Civil Appeal No.126 of 2005 Munikah & Co. Advocates-Versus- Wedube Estates Limited, Nairobi and ELC Case No 585 of 2013 Mercy Waithira Njeru & Others Vs Daniel Njeru Njoka Mbogo & Others.
The 1st and 2nd Respondent’s case;
11. It is their case that the 1st and 2nd Respondents and the Applicant on 13th March 2025, through their respective counsels, entered into a consent stipulating that Nairobi City County (hereinafter referred to as NCC) shall pay Kshs. 5,889,251.77 within 14 days (by 27thMarch 2025) in full and final settlement of the Decree dated 8th December '2022, with a mention scheduled for 27th March 2025, to confirm compliance.
12. It is their case that the application is legally unsustainable and must fail, as it seeks to unilaterally alter a binding agreement without meeting the stringent threshold for variation under Kenyan law, that is fraud, mutual mistake, or illegality, none of which are present or pleaded.
13. It is argued that compounding of the interest, is impermissible under Section 51(2) of the Advocates Act and Paragraph 7 of the Advocates (Remuneration) Order, which mandate simple interest only unless expressly ordered otherwise, and no such order for compounding exists in the instant suit.
14. The 1st and 2nd Respondents invoke Order 25 Rule 5 of the Civil Procedure Rules, 2010 which provides that a consent order recorded under constitutes a binding agreement, enforceable as a court decree.
15. The 2nd Respondent further argues that Section 21 of the Government Proceedings Act, Cap. 40, mandates a Certificate of Order Against Government as evidence a debt which does not override a subsequent consent order, which, under Section 21(3) and Order25 CPR, takes precedence as a court-adopted settlement.
16. On the issue of contempt, the 1st Respondent asserts that no personal liability can attach to the Respondents, as officers acting in official capacities, as is provided for under Section 13A of the Government Proceedings Act, and any finding of contempt would be manifestly unjust given the Controller of Budget’s.
17. It is their submission that the Applicant’s attempt to reopen a concluded settlement contravenes Article 159(2)(c} of the Constitution, which underscores the importance of finality in dispute resolution.
18. Reliance is placed in the Court of Appeal case Brooke Bond Liebig (K) Ltd v Mallya [1975] EA 266, where the court held that consent orders may only be varied or set aside on grounds of fraud, mutual mistake, or illegality.
19. They further submit that the Applicant's demand for additional interest, based on compounding in violation of Section 26 of the Civil Procedure Act, lacks legal foundation.
20. He urges this Honorable court to dismiss the Notice of Motion dated 20th March 2025 with costs and also grant the following prayers:
a. Affirms that the sum of Kshs. 5,889,251.77 constitutes the full and final obligation of Nairobi City County pursuant to the consent order;
b. Declares that no further interest is payable beyond the settled amount, in view of the legal restriction against compounding interest;
c. Issues such orders as may be necessary to uphold the integrity of the consent order and to prevent abuse of the court process
Analysis and determination:
The issue for determination is whether the Applicant has made out a case for the grant of the orders sought.
21. It is not in doubt that Judgment was entered in favor of the Ex Parte Applicant and Decree issued on the principal sums plus Interest of 14% p.a. from 04.08.22 until payment in full.
22. The Respondents were served with the Certificate of order Against Government indicating the sums owing as Kshs. 5,888,526.85 as at 07.05.24 which sum was endorsed on the Notice to show cause.
23. On 13th March 2025, through their respective counsel, parties entered into a consent stipulating that Nairobi City County (hereinafter referred to as NCC) shall pay Kshs. 5,889,251.77 within 14 days (by 27thmarch 2025) in full and final settlement of the Decree dated 8th December '2022, with a mention scheduled for 27th March 2025, to confirm compliance.
24. It is this this court’s finding that the consent did not set aside, vary or alter the Decree nor waive the interest applicable. That remains due given that parties did not expressly enter that as part of the consent.
25. What parties did when they entered into the consent was to advance towards the settlement of the decree as read alongside the certificate of order.
26. The consent, the Decree and the Certificate express what is due to the Applicant and the Applicant is at liberty to pursue his claim over and above what is in the consent which did not set aside the Decree.
27. In the INational Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another [2001] eKLR The Court of Appeal held:
“A court of law cannot rewrite a contract between the parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded and proved.
Kenya Railways Corporation v Humphrey Omondi Owuor Supreme Court Petition No. 6 of 2019 [2022] KESC 3 (KLR) The Supreme Court held that: “Where parties freely and voluntarily enter into a contract, courts will enforce its terms as written... The court cannot vary those terms merely because one party finds them burdensome.”
28. This court cannot rewrite the consent for the parties.
29. In addressing its mind to the issue of compliance with the terms of the Consent, it is this court’s finding that The Respondent has not advanced proof of payment or compliance with the terms of the consent.
30. It is this court finding that in failing to pay the decretal sums in full with interest up-to date, the Respondents are hereby found to be in Contempt of the Order of 13th March, 2025.
Disposition:
31. The court does not find any justification to amend the Consent.
32. The Respondents are in contempt of the court order of 17th March, 2025.
Order:
1. Prayer 3 is disallowed.
2. The Respondents are found to be in Contempt of the Order that was issued on 17.03.25.
3. The matter shall proceed for mitigation on 14.10.25.
4. Costs to the Applicant.