[2008] KEHC 1202 (KLR)
The court determined that, since the ruling on the preliminary objection by Hon. Khaminwa, J. touched on the application dated 1st August, 2008, it was appropriate and procedurally proper for that application to be heard by her Ladyship. Consequently, the proceedings conducted before Lesiit, J. on 22nd September,...
Source-derived case information.
- Citation
- [2008] KEHC 1202 (KLR)
- Parties
- Plaintiff: Aggrey Peter Thande; Defendant: Co-operative Bank of Kenya Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 265 of 2008
- Procedural Posture
- Civil Suit / Ruling on Application and Directions After Preliminary Objection
- Outcome
- Proceedings before Lesiit, J. set aside; application to be heard afresh before Hon. Khaminwa, J.; interim orders to remain in force.
- Legal Topics
- Preliminary Objection, Setting Aside Proceedings, Transfer of Application, Interim Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Aggrey Peter Thande
Plaintiff
Co-operative Bank of Kenya Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Application and Directions After Preliminary Objection
Legal Issues
- 1 Whether the application dated 1st August, 2008 should be heard by the same judge who ruled on the preliminary objection.
- 2 Whether proceedings conducted before a different judge should be set aside in light of overlapping issues.
Ratio Decidendi
The court determined that, since the ruling on the preliminary objection by Hon. Khaminwa, J. touched on the application dated 1st August, 2008, it was appropriate and procedurally proper for that application to be heard by her Ladyship. Consequently, the proceedings conducted before Lesiit, J. on 22nd September, 2008 were set aside to avoid conflicting findings and to ensure consistency in the handling of the matter. The court further directed that the parties agree on a date for the hearing of the application before Hon. Khaminwa, J., and that interim orders remain in force until the application is heard and determined.
Court Disposition
Proceedings before Lesiit, J. set aside; application to be heard afresh before Hon. Khaminwa, J.; interim orders to remain in force.
Orders
- Proceedings heard before Lesiit, J. on 22nd September, 2008 are set aside.
- The application dated 1st August, 2008 shall be argued afresh before Hon. Khaminwa, J.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Suit 265 of 2008
AGGREY PETER THANDE.………….………………….……….PLAINTIFF
VERSUS
CO-OPERATIVE BANK OF KENYA LIMITED……….……. DEFENDANT
R U L I N G
I have had occasion to read the ruling of my learned sister Hon. Khaminwa, J. on the Preliminary Objection argued by the parties before her on the 7th July 2008. The ruling is dated 15th July 2008. It is my view that the present application, Notice of Motion dated 1st August, 2008 ought to have been argued before her Ladyship in view of my observation that part of her finding in the ruling on the Preliminary Objection touches on the said application.
For that reason, I set aside the proceedings heard before me on the 22nd September, 2008 and direct that the application be argued afresh before her Ladyship.
I do apologize to the parties for any inconvenience caused to them by virtue of this direction.
The parties will agree on a date for the hearing of the application dated 1st August, 2008.
The interim orders will remain in force until the pending application is heard and determined.
Dated at Nairobi this 9th day of October, 2008.
LESIIT, J.
JUDGE
Read, signed and delivered, in the presence of:
Mr. Kwengu for Applicant
Mr. Mungai for Respondent
Mr. Kabaru for interested party
LESIIT, J.
JUDGE