[2006] KEHC 1456 (KLR)
The court held that an order for substituted service is not available where the third party company has been wound up and its directors are no longer within the jurisdiction of the court. The defendant did not rebut the evidence that the third party was wound up and its directors had left the jurisdiction....
Source-derived case information.
- Citation
- [2006] KEHC 1456 (KLR)
- Parties
- Plaintiff: Bayer East Africa Limited; Defendant: Express Kenya Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 1009 of 2002
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Application
- Outcome
- application dismissed
- Judges
- MM Kasango
- Legal Topics
- Substituted Service, Third Party Proceedings, Company Winding Up
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bayer East Africa Limited
Plaintiff
Express Kenya Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Application
Legal Issues
- 1 Whether substituted service can be ordered against a company that has been wound up and whose directors are outside the court's jurisdiction.
Ratio Decidendi
The court held that an order for substituted service is not available where the third party company has been wound up and its directors are no longer within the jurisdiction of the court. The defendant did not rebut the evidence that the third party was wound up and its directors had left the jurisdiction. Therefore, the application for substituted service was dismissed.
Court Disposition
application dismissed
Orders
- The chamber summons dated 28th April 2006 is dismissed with costs to the plaintiff.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Suit 1009 of 2002
BAYER EAST AFRICA LIMITED…………….....................................................……………….PLAINTIFF
VERSUS
EXPRESS KENYA LIMITED…………………...................................................………….....DEFENDANT
R U L I N G
The defendant seeks, by a chamber summon dated 28th April 2006 an order that the plaintiff be granted leave to serve the Third Party by way of substituted service through advertisement in print media. There is obviously a mistake in that prayer since the application is made by the defendant. The application was opposed.
The plaintiff in opposition drew the court’s attention to an investigation report that was forwarded to the defendant over a year before the present chamber summons was filed. That investigative report revealed that the 3rd party company was wound up and its directors had left the jurisdiction of this court. The defendant did not rebut that inference.
The court accepts defence argument that an order for substituted service cannot be made where a company, the proposed 3rd party, has been wound up and its directors are out of this court’s jurisdiction.
The orders therefore sought by the defendant will not be granted and the chamber summons dated 28th April 2006 is dismissed with costs to the plaintiff.
MARY KASANGO
JUDGE
Dated this 24th July 2006
MARY KASANGO
JUDGE