[2010] KEHC 311 (KLR)
The court found that there was no evidence on record of a notice of withdrawal or discontinuance of H.C.C.C. No. 35 of 1997. The plaintiff, having asserted withdrawal, bore the burden of proving it by producing the requisite notice, duly filed, stamped, and served. In the absence of such evidence, the court...
Source-derived case information.
- Citation
- [2010] KEHC 311 (KLR)
- Parties
- Plaintiff: D.J. Lowe & Company Limited; Defendant: Credit Agricole Indosuez; Defendant: Bank of Africa Kenya Limited; Defendant: Registrar of Titles, Mombasa
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 235 of 2010
- Procedural Posture
- Civil Case / Interlocutory Ruling on Preliminary Issue
- Outcome
- Preliminary finding that H.C.C.C. No. 35 of 1997 has not been withdrawn and remains pending.
- Legal Topics
- Withdrawal of Suit, Discontinuance, Burden of Proof, Pending Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
D.J. Lowe & Company Limited
Plaintiff
Credit Agricole Indosuez
Defendant
Bank of Africa Kenya Limited
Defendant
Registrar of Titles, Mombasa
Defendant
Procedural Posture
Civil Case / Interlocutory Ruling on Preliminary Issue
Legal Issues
- 1 Whether H.C.C.C. No. 35 of 1997 (Mombasa) has been withdrawn or discontinued as alleged by the plaintiff.
- 2 Whether there are pending proceedings between the parties in connection with the same subject matter.
Ratio Decidendi
The court found that there was no evidence on record of a notice of withdrawal or discontinuance of H.C.C.C. No. 35 of 1997. The plaintiff, having asserted withdrawal, bore the burden of proving it by producing the requisite notice, duly filed, stamped, and served. In the absence of such evidence, the court determined as a matter of fact that H.C.C.C. No. 35 of 1997 remains pending. The existence of a pending suit on the same subject matter may have legal implications for the current proceedings, including the three pending applications and the entire suit, which the court will address after hearing counsel's submissions on the way forward.
Court Disposition
Preliminary finding that H.C.C.C. No. 35 of 1997 has not been withdrawn and remains pending.
Orders
- Counsel are invited to address the court on the implications of the pending suit and the way forward, particularly regarding the three pending applications and the entire suit.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL CASE NO. 235 OF 2010
D.J. LOWE & COMPANY LIMITED …………………………….PLAINTIFF
VERSUS
CREDIT AGRICOLE INDOSUEZ …………………………1ST DEFENDANT
BANK OF AFRICA KENYA LIMITED …………...…….….2ND DEFENDANT
REGISTRAR OF TITLES, MOMBASA …………….…….3RD DEFENDANT
RULING AND/OR DIRECTIONS
A fundamental issue has arisen in respect of the application dated 30. 10. 2010 by the 1st Defendant and which all parties agree will have crucial consequences or ramifications depending on the findings of the court in the court record.
The question is whether H.C.C.C. No. 35 of 1997 (Mombasa) is still pending or whether it was ever withdrawn or discontinued.
In paragraph 16 of the plaint dated 7th July, 2010 the plaintiff states on oath (through Verifying Affidavit) H.C.C.C No. 35 of 1997 has been withdrawn by the plaintiff and therefore the plaintiff states there are no pending proceedings between the parties herein in connection with the same subject matter.
By a letter dated 20th October 2010 the Deputy Registrar of the High court at Mombasa in response to an inquiry by the 1st Defendant’s advocate wrote:-
“C.B. Gor & Gor
Advocate
MOMBASA
RE: HCCC No. 35 of 1997 D.J. LOWE & CO. LTD –V- BANQUE INDOSUEZ & ANOTHER
………………………………………………………………………
I have perused the entire above-mentioned court file but did not see any notice of withdrawal of suit.
DEPUTY REGISTRAR
HIGH COURT – CIVIL
MOMBASA”
Upon adjournment at the last appearance of the matter in court, I carefully looked through the voluminous court file but did not find any Notice of withdrawal or discontinuance of the above-mentioned suit.
In the circumstances, the burden of proof is upon the plaintiff to prove that it duly filed such a notice. Such a Notice must be stamped upon payment of requisite filing fee. After that, it must be served on the Defendants for it to be effective.
A discontinuance of a suit is termination of the entire suit while withdrawal usually refers to withdrawal of parts of a claim or suit. A withdrawal of the entire suit can be construed to be in effect a discontinuance.
In view of the foregoing and in the absence of any evidence of the alleged withdrawal of HCCC No. 35 of 1997, I find as a matter of fact that HCCC No. 35 of 1997 has not been withdrawn as alleged to date and the same is pending.
If the said suit related to the subject matter in this suit then it follows that some legal consequences/implications may arise and which the court may have to consider and address.
I will therefore invite counsel to give their views as to the way forward and the implications. In particular the court will have to be told the possible effect of this on the 3 pending applications and the entire suit.
Dated at Mombasa this 16th day of December 2010.
M.K. IBRAHIM
J U D G E