[2021] KEHC 8013 (KLR)
The court found that the applicant failed to comply with a prior order requiring leave of court before filing any application. The order, issued by Chemetei, J, remained valid and binding despite the judge's transfer. The requirement to seek leave is intended to ensure efficient use of court resources and to protect...
Source-derived case information.
- Citation
- [2021] KEHC 8013 (KLR)
- Parties
- Petitioner: Africa Turkana Ltd; Petitioner: Africa Oil Corporation; Petitioner: Africa Oil Kenya BV; Respondent: 0903658 BC Ltd; Respondent: Interstate Petroleum Co Ltd; Objector: Maosa Kengara Monena; Objector: Erick Patrick Adero Obat; Objector: Moses Onyango Omboyo; Objector: Lucy Gathimo; Applicant: Edward Kings Onyancha Maina
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Winding Up Cause 1 of 2011
- Procedural Posture
- Winding Up Cause / Ruling on Application for Sequestration and Warrants of Arrest
- Outcome
- application struck out as incompetent with costs to the petitioners/respondents
- Legal Topics
- Leave of Court, Functus Officio, Res Judicata, Court Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Africa Turkana Ltd
Petitioner
Africa Oil Corporation
Petitioner
Africa Oil Kenya BV
Petitioner
0903658 BC Ltd
Respondent
Interstate Petroleum Co Ltd
Respondent
Maosa Kengara Monena
Objector
Erick Patrick Adero Obat
Objector
Moses Onyango Omboyo
Objector
Lucy Gathimo
Objector
Edward Kings Onyancha Maina
Applicant
Procedural Posture
Winding Up Cause / Ruling on Application for Sequestration and Warrants of Arrest
Legal Issues
- 1 Whether the applicant was required to seek and obtain leave of court before filing the application.
- 2 Whether the court had jurisdiction to entertain the application in light of previous orders and the doctrine of functus officio.
- 3 Whether the matter was res judicata.
Ratio Decidendi
The court found that the applicant failed to comply with a prior order requiring leave of court before filing any application. The order, issued by Chemetei, J, remained valid and binding despite the judge's transfer. The requirement to seek leave is intended to ensure efficient use of court resources and to protect parties from vexatious litigation. As the applicant did not obtain the necessary leave, the application was incompetent. The court therefore struck out the application with costs to the petitioners/respondents.
Court Disposition
application struck out as incompetent with costs to the petitioners/respondents
Orders
- The application is struck out.
- Costs awarded to the petitioners/respondents.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KITALE
WINDING UP CAUSE NO 1 OF 2011
AFRICA TURKANA LTD.....................................................................................................1ST PETITIONER
AFRICA OIL CORPORATION...........................................................................................2ND PETITIONER
AFRICA OIL KENYA BV....................................................................................................3RD PETITIONER
AND
0903658 BC LTD.........................................................................SUPPORTING CREDITOR/RESPONDENT
VERSUS
INTERSTATE PETROLEUM CO LTD...................................................................................RESPONDENT
MAOSA KENGARA MONENA..............................................................1ST OBJECTOR/CONTRIBUTOR
ERICK PATRICK ADERO OBAT...........................................................2ND OBJECTOR/CONTRIBUTOR
MOSES ONYANGO OMBOYO..............................................................3RD OBJECTOR/CONTRIBUTOR
LUCY GATHIMO.....................................................................................4TH OBJECTOR/CONTRIBUTOR
EDWARD KINGS ONYANCHA MAINA.......................5TH OBJECTOR/CONTRIBUTOR/APPLICANT
RULING
In his notice of motion dated 24th December 2020 the brought under certificate of urgency sought orders of sequestration and warrants of arrest against M/s 0903658 B.C. Ltd, the supporting creditor, who failed to oppose the Notice To Show Cause why execution should not issue as ordered by the court on 26. 09. 2019; which was served upon the supporting creditor on 05. 11. 2020.
The petitioners opposed the application on the grounds that this court lacks jurisdiction; since this court is functus officio and the matter is res judicata.The respondent filed grounds of opposition and raised a preliminary objection based on points of law.
During the pendency of the delivery of the ruling, it came to my attention that this court (Chemetei, J) had on 28th May 2019 issued an order requiring the applicant to seek leave of this court before filing any application.
It is clear that the applicant did not first seek and obtain leave of this court before filing the instant application.
It is important to point out that the obtainment of the said leave ensures the economic usage of the scarce court resources namely personnel, time and money. Additionally, it protects litigants against vexatious litigation with its attendant monetary expenses.
The fact that Chemetei, J was transferred from Kitale to Nakuru did not affect the continued validity of the order that he issued; since an order once issued by a court of law acquires a life of its own and remains in force throughout the life of the suit. Furthermore, it binds the parties to the suit throughout its life time.
In the premises, I find that this application is incompetent and is hereby struck out with costs to the petitioners/respondents.
Ruling signed, dated and delivered at Kapenguria via e-mail address of the contributor/applicant and via Post Office Box of the Petitioner/respondent this 30th day of March2021
J. M. BWONWONG’A
JUDGE
In the Presence of
Mr. Okodoi -Court Administrator