[2021] KEHC 13192 (KLR)
The court determined that the application for stay of proceedings was largely spent due to the prior ruling in ACEC No. 8 of 2020, which had already addressed the issue of consolidation and the sequence of proceedings. The court concurred with the earlier finding that the validity of the procurement contract should...
Source-derived case information.
- Citation
- [2021] KEHC 13192 (KLR)
- Parties
- Plaintiff: Aero Dispenser Valves Limited; Defendant: Kenya Pipeline Company; Applicant: Ethics & Anti-Corruption Commission
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 224 of 2017
- Procedural Posture
- Civil Suit / Ruling on Application for Joinder and Stay of Proceedings
- Outcome
- Application for joinder and stay of proceedings partially allowed; proceedings stayed for six months; transfer of ACEC file ordered; each party to bear own costs.
- Legal Topics
- Joinder of Parties, Stay of Proceedings, Consolidation of Suits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Aero Dispenser Valves Limited
Plaintiff
Kenya Pipeline Company
Defendant
Ethics & Anti-Corruption Commission
Applicant
Procedural Posture
Civil Suit / Ruling on Application for Joinder and Stay of Proceedings
Legal Issues
- 1 Whether the Ethics & Anti-Corruption Commission should be enjoined as an interested party in the suit.
- 2 Whether proceedings in the instant suit should be stayed pending determination of ACEC No. 8 of 2020.
- 3 Whether consolidation of the instant suit with ACEC No. 8 of 2020 is appropriate given the parties involved.
Ratio Decidendi
The court determined that the application for stay of proceedings was largely spent due to the prior ruling in ACEC No. 8 of 2020, which had already addressed the issue of consolidation and the sequence of proceedings. The court concurred with the earlier finding that the validity of the procurement contract should be resolved before contractual claims are entertained in the instant suit, to prevent injustice to the taxpayer. Since the Defendant in this suit is not a party in the ACEC matter, formal consolidation could not be ordered at this stage. The court therefore directed the transfer of the ACEC file for further directions and stayed the current proceedings for six months to allow...
Court Disposition
Application for joinder and stay of proceedings partially allowed; proceedings stayed for six months; transfer of ACEC file ordered; each party to bear own costs.
Orders
- ACEC No. 8 of 2020 EACC v Charles Ndiritu Maitai & 13 others to be transferred back to the Anti-Corruption and Economic Crimes Divisions for hearing and determination.
- Stay of proceedings in the instant suit for six months.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURS
COMMERCIAL AND ADMIRALTY DIVISION
CIVIL SUIT NO.224OF 2017
AERO DISPENSER VALVES LIMITED............................................PLAINTIFF
VERSUS
KENYA PIPELINE COMPANY......................................................DEFENDANT
ETHICS & ANTI-CORRUPTION
COMMISSION....................INTENDED INTERESTED PARTY/APPLICANT
RULING
1. This matter was coming up for a Ruling in respect of a Notice of Motion dated 8th February, 2021 filed by EACC. In the said application EACC is seeking orders, inter alia, to be enjoined in these proceedings as an Interested Party and stay of the proceedings herein pending the hearing and determination of its application dated 13th August, 2020 filed in ACEC No. 8 of 2020 EACC v Charles Ndiritu Maitai & 13 others.
2. However, the court has since learnt that on 26th May, 2021, Hon. Mumbi Ngugi, J (as she then was) delivered a Ruling in ACEC No. 8 of 2020 EACC v Charles Ndiritu Maitai & 13 others which means that EACC’s prayer for stay of proceedings as sought in the application filed herein is already spent. Notably, the learned judge found EACC’s prayer for consolidation of the ACEC Suit and the instant suit to be merited but could not make an order to that effect because the Defendant herein is not a party in the ACEC Suit. The learned judge ordered that the file for ACEC No. 8 of 2020 EACC v Charles Ndiritu Maitai & 13 othersbe transferred to this court for directions regarding consolidation, and any other directions it deems fit as to the hearing and determination of the two matters.
3. I also align myself with the learned judge’s finding that the validity of the contract arising out of the procurement process that led to the award of the subject contract to the Plaintiff should be addressed first before determining the contractual issues raised by the Plaintiff in the instant suit to avoid any injustice that may be occasioned to the taxpayer.
4. Accordingly, and in the interest of justice, I make the following orders:
a.I direct that ACEC No. 8 of 2020 EACC v Charles Ndiritu Maitai & 13 others be transferred back to the Anti-Corruption Division and Economic Crimes Divisions for hearing and determination.
b.In the meantime, there shall be a stay of proceedings in the in the instant suit initially for a period of six (6) months.
c.This matter shall be mentioned after the said six (6) to confirm the progress of ACEC No. 8 of 2020 EACC v Charles Ndiritu Maitai & 13 others and/or for further orders and directions.
d.Each Party shall bear its own costs of this application.
DATED AND DELIVERED AT NAIROBI THIS 15TH JULY, 2021.
G.W.NGENYE-MACHARIA
JUDGE
In the presence of:
1. Mrs. Litoro for the Intended Interested Party/Applicant.
2. Ms Rita Joyce h/b for Ahmed Nasir and Odhiambo for the Plaintiff/Respondent.
3. Mr. Mogire for the Defendant/Respondent.