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JudgmentWilliam Kibet Agui VS Caleb Martin AND Rightways Trading AND 1 Others15 min read

William Kibet Agui VS Caleb Martin AND Rightways Trading AND 1 Others

High Court at Eldoret High Court · · Emily Ominde

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT ELDORET

MISCELLANEOUS CIVIL APPLICATION NO. E240 OF 2024

WILLIAM AGUI..........................................................................APPLICANT

VERSUS

CALEB MARTIN (Suing as the father and next friend

SHANEL AKSA (Minor).....................................................1ST REPSONDENT

RIGHTWAYS TRADING…..............................................2ND RESPONDENT

NEHEMIAH KIPKOGEI

LETING ..............................................................................3RD RESPONDENT

RULING

  1. By a Notice of Motion dated 16/9/2024 brought under Article 165(6) of the Constitution, Section 80 of the Civil Procedure Act, Cap 21, Order 45 Rule 1 and Order 50 Rule 1 of the Civil Procedure Rules, the Applicant seeks the following orders:
  2. Spent.
  3. Spent.
  4. Spent.
  5. The Honourable Court be pleased to issue an order calling for the Court file and proceeding in Eldoret MCCC No. 309 of 2016; Caleb Martin (Suing as the father and next friend of Shanel Aksa Minor) Vs. William Agui & 2 Others, for further directions in the exercise of its supervisory jurisdiction pursuant to Article 165 (6) for further direction.
  6. That this Honourable Court be pleased to discharge and/or set aside the warrant of arrest dated 21/2/2024 and consequently order unconditional release of William Agui, the Applicant herein.
  7. The cost of this Application be provided for.
  8. The Application is premised on the grounds on the face of it and is further supported by the Affidavit sworn by the Applicant on the same date.
  9. In the Affidavit, he deposed that on or about 28/8/2024, persons who identified themselves as police from Eldoret Central Police Station visited his home with the sole purpose of arresting him pursuant to warrants of arrest order issued on 21/2/2024 arising from Eldoret MCCC No. 309 of 2016; Caleb Martin (Suing as the father  and next friend of Shanel Aksa Minor) Vs. William Agui & 2 Others, and he was taken aback as he was not privy to the proceedings in Eldoret MCCC No. 309 of 2016; Caleb Martin (Suing as the father and next friend of Shanel Aksa Minor) Vs. William Agui & 2 Others.
  10. That upon perusal of the said warrants of arrest order, he discovered that the said order commanded the Officer Commanding Station, Eldoret Police Station to arrest one, Simon Lekinoi and not him, that nonetheless, he was informed that the issue of varying names in the warrants of arrest was typographical error, however as a law abiding citizen he accompanied the said police officers to Eldoret Police Station where he was held in custody and later on 3/9/2024 presented before the Subordinate Court wherein he was committed to civil jail for a period of thirty (30) days.
  11. The Applicant further deposed that the impugned warrants of arrest preceding his arbitrary detention were obtained through non-disclosure of the fact he was not the beneficial owner of the motor vehicle that caused the accident that is subject of the suit in Eldoret MCCC No. 309 of 2016; Caleb Martin (Suing as the father and next friend of Shanel Aksa Minor) Vs. William Agui & 2 Others.
  12. The Applicant wants this Court to call for the proceedings in the lower Court so as to satisfy itself of the facts giving rise to the suit and for purposes of giving further directions. The Applicant maintained that unless this Application is allowed, he will be greatly prejudiced. He added that he is 75 years old, of frail health and in need of urgent medical care and therefore his continued detention in prison considering his medical condition is an affront to his right to access the highest standards of healthcare.

     The Reply by the Respondent

  1. The Application is opposed vide the Replying Affidavit sworn by 1st

Respondent, Caleb Martini on 22/9/2024.

  1. In the Affidavit, he deposed that Application is not urgent in anyway, is

incompetent, is an afterthought, misadvised, baseless, frivolous, scandalous, misconceived, lacks merit and is an abuse of the Court process as the same does not disclose any reasonable legal and/or factual ground to warrant this Court to grant the prayers sought,  that when he instituted ELDORET CMCC NO.309 OF 2016 and that the Applicant, the 2nd  Respondent and the 3rd  Respondent were duly served with all Court pleadings being summons to enter appearance, Plaint, Plaintiff's list of documents, Plaintiff’s list of witnesses, Plaintiff’s witnesses statement which service was acknowledged by the Applicant and this fact is not disputed by the Applicant.

  1. That the esteemed firm of J.M Kimani & Co. Advocates entered

appearance for the Applicant, the 2nd  Respondent and the 3rd  Respondent on behalf of Invesco Assurance Company limited the insurer of the suit motor vehicle belonging to the Applicant, the 2nd  Respondent and the 3rd  Respondent and that the very firm has not sworn any affidavit disputing that they entered appearance for the Applicant, the 2nd  Respondent and the 3rd  Respondent herein and/or any instruction letter from Invesco advising them to enter appearance for either the Applicant, the 2nd  Respondent and the 3rd  Respondent and as such the Application hereto is a mischievous one aimed at taking the Respondent in circles and prevent  him from enjoying fruits of litigation herein.

  1. He further deposed that on 20/4/2021 consent on liability was entered into

between his Advocate and Applicant, the 2nd Respondent and the 3rd Respondent Counsel in the ratio of 15%:85 % in his favour as against the Applicant, the 2nd Respondent and the 3rd Respondent which consent the Applicant insinuates that he was not aware of for ulterior motives.

  1. He contended that it is trite law that a consent order having been adopted

as an order of the Court can only be set aside on grounds that would allow for a contract to be vitiated which include but are not limited to fraud, collusion, illegality, mistake, an agreement being contrary to policy of the Court, absent of material facts and ignorance of material facts which grounds the Applicant has not demonstrated in any way.

  1. That the consent on liability entered into between the parties in ELDORET

CMCC NO.309 OF 2016 was not an error on the face of the record so as to meet the threshold for review of the judgment in ELDORET CMCC NO.309 OF 2016.

  1. He maintained that as adopted from the common law, an advocate who is

duly instructed to act on behalf of his client has authority to act in every single thing that pertains to that matter and even enter into consents in his or her behalf and the client cannot avail himself of any limitation by him of the implied authority to his advocate unless such limitation was brought to the notice of the other.

  1. That in the instant case there was no notice that the J.M Kimani-previous

counsel on record for the Applicant in ELDORET CMCC NO.309 OF 2016 had no authority to record consent on liability thus the judgement and the consent on liability in ELDORET CMCC NO.309 OF 2016 are binding.

  1. He further deposed that the motor vehicle search that was produced in

Court and the abstract respectively reveal that the suit motor vehicle belonged to the Applicant, the 2nd Respondent and the 3rd Respondent.

  1. According to the 1st Respondent, the instant Application hereto is only

aimed at subjecting this honourable Court to double work in a matter where judgement was validly entered in his favour in ELDORET CMCC NO.309 OF 2016 after the Court found that he had a reasonable course of action against the Applicant, the 2nd Respondent and the 3rd Respondent.

  1. That the Applicant has approached this honourable Court with unclean

hands and is guilty of material non-disclosure and has breached section 1A,1B and 3A of the Civil Procedure Act and thus is undeserving of the orders sought since it is trite law that a party seeking to benefit from discretionary power of the Court must approach the Court with clean hands, move the Court diligently and must be ready to and willing to abide with preconditions the Court may impose.

  1. That the Applicant herein is dishonest and has suppressed material facts

hence cannot benefit from the discretionary powers of the Court and in particular the Applicant has not disclosed to the honourable Court the following:

  1. That the Applicant has not disclosed to this honourable Court that there is

a duly executed consent by himself, the firm of J.M Kimani, firm of Mukabane & Kagunza Advocates where the Applicant consented to settle the decretal amount hereto in instalments of Kshs.100, 000/= per month until payment in full and in default of any instalment the Applicant shall be at liberty to proceed with execution.

  1. That arising from the said consent on settlement of the decretal amount,

the Applicant has not revealed to the honourable Court that he has already paid the 1st Instalment of Kshs. 100,000/= for which he was issued with a receipt and so in essence he is estopped from denying liability and/or otherwise.

  1. That it is strange for the Applicant to claim that he did not instruct the firm

of J.M Kimani to record consent on liability but at the same time executes a settlement agreement prepared by the very firm he claims he never gave instructions to.

  1. That the Applicant has not disclosed to this honourable Court that he filed

an Application dated 9/5/2022 for review of judgment in ELDORET CMCC NO.309 OF 2016 and that the said Application was also dismissed on 28/10/2022.

  1. That the Applicant has not disclosed to the honourable Court that he filed

another Application dated 26/8/2024 for setting aside of judgement ELDORET CMCC NO.309 OF 2016 and the said Application was also dismissed on 19/9/2024.

  1. That the Applicant has not disclosed to this honourable Court that he has

never lodged any appeal arising from decisions of the said Applications dated 9/5/ 2022 and 26/8/2024, in ELDORET CMCC NO.309 OF 2016 and in abuse of the Court process has decided to file this instant Application.

  1. He maintained that the Applicant having failed to disclose material facts

to the Court to the above extent  then the by way of this the Applicant is hell bent at frustrating the Respondent from realizing the fruits of litigation and has employed all manner of delaying tactics to drag the conclusion of this matter and the Court record in ELDORET CMCC NO.309 OF 2016 will bear me witness, that the Applicant's instant Application herein is made in utmost bad faith and the same is calculated at misleading the Court and delaying execution process thus preventing me from realizing and enjoying the fruits of litigation after a very long time.

  1. That the Applicant's action of feigning ignorance of the proceedings in

ELDORET CMCC NO. 309 OF 2016 and in particular the consent on liability herein is self-defeating and indeed underscores the Applicant's dishonesty on the Application herein and the same ought to be disallowed as the Applicant had a competent counsel on record and that by allowing the instant Application, the Honourable Court will only be aiding the Applicant to temporize payment of a legally accrued debt which he urged the Court to frown upon by dismissing the instant Application.

  1. The 1st Respondent contends that he stands and will continue to suffer

substantial loss should the instant Application be allowed noting that ELDORET CMCC NO.309 OF 2016 has been pending in Court since 2016 when it was initiated and that the execution process against the Applicant commenced following the entry of a regular, proper and meritorious judgment.

  1. That the Applicant has not satisfied the decretal amount in ELDORET

CMCC NO.309 OF 2016 and at the same time has never appealed against the judgement entered in favour of the Respondent on 6/8/2021 and that in the said judgement the Respondent was awarded costs of the suit which costs have also been assessed by the honourable Court and that there cannot be stay for taxed costs because once the Certificate of costs has been issued it is final and binding on the parties.

  1. According to the 1st Respondent, the Applicant's instant Application is

premised on falsehoods generally tainted with dishonesty and misrepresentation and is obviously a deliberate attempt to mislead the Court to grant orders sought and that it is clear from the foregoing that the Applicant's Application is an approbation and reprobation only intended to frustrate the realization of the Decree in ELDORET CMCC NO.309 OF 2016 to the detriment of the Respondent and that further, the Applicant is also culpable of indolence and the instant Application does not meet the threshold for grant of orders sought.

  1. He contended that the instant Application is anchored on provisions of the

law which do not donate any power to this honourable Court to grant the orders sought thus making the instant Application herein fatally defective, and that further, the Application is in breach of Sections 1A and 1B of the Civil Procedure Act and is underserving of the Court's discretion.

  1. That it is in the interest of justice to all parties concerned, that the matter

comes to finality because the 1st Respondent is apprehensive that should the Application be allowed, it is likely to cause him anxiety and cause the matter to be unreasonably protracted for a long time in Court and further delay the proceedings as a result of the unwarranted orders sought that would occasion insurmountable prejudice to him.

      Re-joinder by the Applicant

  1. The Applicant also filed a Supplementary Affidavit dated 1/10/2024,

wherein save for reiterating the contents of his Supporting Affidavit dated 16/9/2024, he added that it is not disputed that on 5/5/2016, the firm of Daisy Chepkirui & Company Advocates came on record for him and filed a Statement of Defence dated 9/5/2016 denying ownership and possession of motor vehicle registration number KBY 634H.

  1. Further, that on 19/12/2016, the firm of J.M. & Co Advocates erroneously

came on record for him, the 2nd Respondent and the 3rd Respondent herein under the instructions of Invesco Assurance Company Limited, the insurer and that the Plaintiff amended his Plaint on 29/8/2016 clarifying that at all material times of the suit, the 3rd Respondent herein was the registered owner of the suit motor vehicle arising from a sale agreement dated 18/3/2014 between the 2nd and 3rd Respondents herein.

  1. He contended that he is not privy to the said agreement and that as at

15/3/2016, Rightways Trading Limited, the 2nd Respondent herein was the registered owner of motor vehicle KBY 634H as evidenced by annexure CM-3annexed to the 1st Respondent’s Replying Affidavit dated 26/9/2024 and neither was he the beneficial owner nor the driver of the suit motor vehicle at the time of the accident.

  1. That it is not disputed that the hearing of the matter in the trial Court

proceeded, witnesses testified and a judgment was delivered on 6/8/2021, that it is also not disputed that the Notice of Motion Applications dated 9/5/2022 and 26/8/2024 were filed by the firms of Kelvin Bett & Associates Advocates and Kigen Ngetich & Co Advocates respectively on his behalf, that the said Applications were heard and determined with the Court dismissing both of them; and lastly, it is not disputed that at the material time of the accident, the suit motor vehicle was insured by Invesco Assurance Company Limited as evidenced by the police abstract annexed as CM-4 in the 1st  Respondent's replying affidavit dated 26/8/2024.

  1. He further deposed that he was neither the driver of the suit motor vehicle

at the material time of the accident, the registered owner of the vehicle nor the insured, that despite this position holding true, he remained part and parcel of the proceedings in the trial Court and his then legal counsels as well as counsel for the insurer failed, refused, ignored and/or neglected to bring this fact to the attention of the Court to have him excused from the proceedings.

  1. That in the amended Plaint dated 29/8/2016, the 1st Respondent herein

being the Plaintiff in the lower Court file at paragraph 5 described the 3rd  Respondent herein as the registered owner of the suit motor vehicle by virtue of the a sale agreement dated 18/3/2014 between the 2nd  and the 3rd  Respondent herein; additionally that in the police abstract dated 10/3/2016 (annexed as CM-3), it is surprising that the police described him as the registered owner of the suit motor vehicle while the vehicle report dated 15/3/2016 annexed as CM-3 clearly identified Rightways Trading Limited as the registered owner at the time of the accident.

  1. Further that in the Amended Plaint dated 29/8/2016, the 1st

Respondent/Plaintiff neither described him as a driver nor the registered owner of the suit motor vehicle and yet in the prayers, he sought judgment to be entered against him and Rightways Trading Limited jointly and severally while omitting the beneficial owner, the 3rd Respondent herein.

  1. That even in the perusal of the judgment delivered on 6/8/2021, none of

the witnesses identified him as having played any role in the accident whether as a driver, registered or beneficial owner of the suit motor vehicle or the insured; that furthermore, a closer look of the record of the trial Court will indicate that there was confusion as to whom the firm of J.M. Kimani represented during the course of trial.

  1. That unfortunately, by the time the aforesaid facts were brought to the trial

Court's attention, judgment had already been entered against him which he believes on the advice of his current legal counsel to have been entered against him  per incuriam and that subsequently a decree dated 20/1/2022 that was issued against the 2nd  Respondent herein and him leaving out the 3rd  Respondent despite having been cited as a party in the judgment delivered by Honourable Naomi Wairimu on 6/8/2021 and him being the beneficial owner of the suit motor vehicle and the insured.

  1. That there was also a consent dated 28/4/2022 purportedly entered between

the firm of Mukabane Kagunza for the Plaintiff, the Plaintiff himself, J.M Kimani Advocates for the Defendant (who was not identified) and allegedly by him; that the said consent was fraudulently entered into since he did not participate in any negotiations giving rise to it and he did not sign the said consent and that the signature in the said consent is not his.

  1. Additionally, that the said consent is onerous to the extent that it purported

to make him liable to liquidate the decretal sum in monthly instalments of Kshs.100,000/=while the insurer and the insured were the ones liable to satisfy the decree and that at no time would a reasonable man who is neither the driver, the registered or beneficial owner nor the insured/insurer enter into such a consent.

  1. That this was an open, clear and unambiguous mischief which the trial

Court ought to have discovered suo moto and prevented a miscarriage of justice; that the warrants of arrest in execution dated 21/2/2024 are manifestly erroneous as they cite him as the judgment debtor on the one hand and on the other hand names Simon Lekinoi as the person subject of the arrest warrant over a judgment purportedly dated 21/3/2013.

  1. That no notice to show cause was issued inviting him to show cause why

execution should not issue against him before the Court proceeded to issue warrants of arrest dated 20/1/2022 and 21/2/2024 and that  it is also evident from the Application dated 26/8/2024 that he disputed the signature appended on the consent dated 28/4/2022 and invited the trial Court to order a forensic examination to be conducted on the said signature to ascertain the truth but the Court never addressed its mind to that issue in its ruling dated 19/9/2024 annexed as Exhibit CM-8(b) to the 1st  Respondent's Replying Affidavit dated 26/9/2024.

  1. That the payment of Kshs.100,000/= purportedly made on 4/3/2022 as part

payment for the decretal sum was paid by the Manager of Invesco Company Limited and not the Respondent but this notwithstanding, the 1st Respondent’s Advocate purportedly and mischievously issued a receipt in his name.

  1. The Applicant maintained that the circumstances giving rise to the

judgment dated 6/8/2021, purported consent dated 28/4/2022, the warrants of arrest dated 21/2/2024 and orders for committal to civil jail issued on 22/8/2024 are unprocedural, irregular and illegal.

  1. He further deposed that the jurisdiction of this Honourable Court has been

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    William Kibet Agui VS Caleb Martin AND Rightways Trading AND 1 Others William Kibet Agui VS Caleb Martin AND Rightways Trading AND 1 Others