Veteran civil litigation lawyer Cecil Miller has raised the red flag over a consent recorded in court that may enjoin the over 21,000 Mau Mau war veterans to an order that they were never parties to.
Miller, on behalf of AVH Legal LLP, the international law firms that has been fighting for the compensation claims for the Mau Mau freedom fighters in a UK court has sought recourse at the appellate court in Kenya to set aside the controversial consent order enjoining a group of people seeking a share of the judgement to be entered in favour of former fighters “on or before August 2018.”
The lawyer has stated that the consent order recorded in the court appeal in October 2017 was made ex parte and “now binds AVH and other respondents that they were not parties to.”
Miller says the respondents- Godfrey Otieno Onyango and others did record a consent to bind them to be beneficiaries of the proceedings in
Britain.
Britain.
“The said consent is irregular and unlawful…the group’s attempt had been rejected by the high court through a judgement dated October 31 2014 delivered by Justice Eric Ogolla,” Miller says in court documents filed at the appellate court.
Donald Rabala, Onyango and Harvey Agumbah had sought an order in October 2013 seeking to enjoin the international law firm, the same application was rejected.
The group subsequently filed an appeal and later proceeded to execute the consent in August 2017 purporting to bind themselves to the Mau Mau freedom fighter’s litigation in UK.
The disputed consent was recorded before Justice Philip Waki, Justice William Ouko now the President of the court of appeal and Justice Kathurima M’ Inoti
Miller says the consent has now prejudiced the case “The case in the United Kingdom being claim No HQ13X02162 Royal Courts of England and Wales-Eloise Mukami and James Karanja Nyoro and Others V Foreign & Commonwealth Office is about to be concluded and judgement is imminent on or before August 2018, and if successful, the over 21,000 claimants in that case will not be able to access their funds due and payable to them by the applicant as the same is now the subject matter of the consent order of October 2 2017 which the applicant was not a party to,” the certificate of urgency filed by Miller states.
Miller says the consent has now prejudiced the case “The case in the United Kingdom being claim No HQ13X02162 Royal Courts of England and Wales-Eloise Mukami and James Karanja Nyoro and Others V Foreign & Commonwealth Office is about to be concluded and judgement is imminent on or before August 2018, and if successful, the over 21,000 claimants in that case will not be able to access their funds due and payable to them by the applicant as the same is now the subject matter of the consent order of October 2 2017 which the applicant was not a party to,” the certificate of urgency filed by Miller states.
It further reads that the 1st respondent-Donald Rabala- “intentionally and mischievously omitted certain necessary documentation from the Record of Appeal in Nairobi Civil Appeal N0. 155 of 2017 and subsequently misled the court when the consent was adopted on October 2 2017.”
Miller contends that his clients are being forced to agree and comply to what is not known to them.
” The terms of the consent order are adverse to the applicant(AVH Legal LLP) as well as the over 21,000 claimants,” says Miller.
When the matter came up for hearing today June 19 20128 , proceedings were adjourned as one of the judges, Justice Waki was unavailable.
The hearing has been rescheduled to to July 23 and 24 2018.
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