[2019] KEHC 3958 (KLR)
The court found that the foundation of the counterclaim against the 3rd Defendant in the counterclaim, Wananchi Group Holdings Limited, had ceased to exist because the company had resolved not to sell Wananchi Business Services (WBS), which was the sole basis for the injunctive relief sought in the counterclaim. As...
Source-derived case information.
- Citation
- [2019] KEHC 3958 (KLR)
- Parties
- Plaintiff: East Africa Capital Partners Management LP; Defendant: Wananchi Nominees Limited; Defendant: ISP Kenya Limited; Defendant: East Coast Telecoms Limited; Defendant: Wananchi Group Holdings Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 84 of 2017
- Procedural Posture
- Civil Suit / Ruling on Notice of Motion to Strike Out Party From Counterclaim
- Outcome
- application allowed; 3rd defendant in counterclaim struck out; no order as to costs
- Judges
- MM Kasango
- Legal Topics
- Striking Out Parties, Counterclaim Procedure, Injunctive Relief, Corporate Governance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
East Africa Capital Partners Management LP
Plaintiff
Wananchi Nominees Limited
Defendant
ISP Kenya Limited
Defendant
East Coast Telecoms Limited
Defendant
Wananchi Group Holdings Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Notice of Motion to Strike Out Party From Counterclaim
Legal Issues
- 1 Whether the 3rd Defendant in the counterclaim should be struck out as a party due to cessation of the basis of the counterclaim.
- 2 Whether costs should be awarded to the applicant for the Notice of Motion.
Ratio Decidendi
The court found that the foundation of the counterclaim against the 3rd Defendant in the counterclaim, Wananchi Group Holdings Limited, had ceased to exist because the company had resolved not to sell Wananchi Business Services (WBS), which was the sole basis for the injunctive relief sought in the counterclaim. As there was no longer any live issue or cause of action against the 3rd Defendant in the counterclaim, it was appropriate to strike it out as a party to the counterclaim. The court further held that no order as to costs would be made, as the applicant had at one time intended to sell WBS, thus contributing to the initiation of the counterclaim.
Court Disposition
application allowed; 3rd defendant in counterclaim struck out; no order as to costs
Orders
- The 3rd Defendant in the counterclaim, Wananchi Group Holdings Limited, is hereby struck out from the counterclaim.
- There shall be no order as to costs of the Notice of Motion dated 1st October 2018.
Full Case Text
Judgment text and source record
49 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL & TAX DIVISION
CIVIL SUIT NO. 84 OF 2017
EAST AFRICA CAPITAL PARTNERS MANAGEMENT LP................PLAINTIFF
VERSUS
WANANCHI NOMINEES LIMITED...................................................1ST DEFENDANT
ISP KENYA LIMITED..........................................................................2ND DEFENDANT
EAST COAST TELECOMS LIMITED...............................................3RD DEFENDANT
(By original action)
And Between
WANANCHI NOMINEES LIMITED.......................................................1ST PLAINTIFF
INTERNATIONAL CONSULTING MARKETING
SERVICESLIMITED (formerly ISP KENYA LIMITED)....................2ND PLAINTIFF
EAST COAST TELECOMS LIMITED...............................................3RD PLAINTIFF
VERSUS
EAST AFRICA CAPITAL PARTNERS MANAGEMENT LP.........1ST DEFENDANT
AFRICA TELECOMMUNICATIONS
MEDIAAND TECHNOLOGY FUND I, LLC...................................2ND DEFENDANT
WANANCHI GROUP HOLDINGS LIMITED..................................3RD DEFENDANT
RICHARD BELL...................................................................................4TH DEFENDANT
(By Counterclaim)
And further Between
WANANCHI GROUP HOLDINGS LIMITED.............................................PLAINTIFF
VERSUS
WANANCHI NOMINEES LIMITED.................................................1ST DEFENDANT
INTERNATIONAL CONSULTING MARKETING
SERVICES LIMITED(formerly ISP KENYA LIMITED)...............2ND DEFENDANT
EAST COAST TELECOMS LIMITED.............................................3RD DEFENDANT
(By Further Counterclaim)
R U L I N G
1. Before me is a Notice of Motion application dated 1st October 2018. The same is filed by Wananchi Group Holdings Limited (the 3rd Defendant in the counterclaim). The prayer sought is for an order to strike to the 3rd Defendant in the counterclaim from this action.
2. The Defendants in the original suit, namely Wananchi Nominee Limited, ISP Kenya Limited and East Coast Telecoms Limitedcounterclaimed and in so doing sued the 3rd Defendant in the counterclaim. The only prayer in that counterclaim is for an injunction to restrain the 3rd Defendant in the counterclaim, amongst others, from negotiating the sale of, offering for sale, and/or selling Wananchi Business Services (WBS).
3. The 3rd Defendant in the counterclaim through the affidavit of Randhirsingh Judooo, its Director, deponed that the 3rd Defendant in the counterclaim reached a business decision not to sell WBS because it is no longer economically viable. There is attached to the said affidavit an extract of the minute of the Board of Directors of the 3rd Defendant in the counterclaim whereby it was resolved not to proceed with sale of WBS.
4. It is on that basis the application seeks the striking out of the 3rd Defendant in the counterclaim, that is because the basis of the counterclaim ceased to exist. Further the deponent stated that the 3rd Defendant in the counterclaim should be struck out because it was joined in these proceedings because of its relationship with the 1st to the 4th Defendant, who were struck out of these proceedings by this Court’s ruling of 21st September 2018.
5. Although the application was served on all parties there was no opposition filed.
6. Accordingly since the foundation of the cause which brought the 3rd Defendant in the counterclaim ceased to exist there is no reason to continue having that party in this action. There will be no costs awarded to the application because the applicant concedes that at one time it intended to sell WBS, the very basis of the counterclaim.
7. The order of the Court is as follows:
a. The 3rd Defendant in the counterclaim, Wananchi Group Holdings Limited, is hereby struck out from the counterclaim.
b. There shall be no order as to costs of the Notice of Motion dated 1st October 2018.
DATED, SIGNED and DELIVERED at NAIROBI this 4TH day of OCTOBER, 2019.
MARY KASANGO
JUDGE
Ruling ReadandDeliveredinOpen Courtin the presence of:
Sophie....................................COURT ASSISTANT
............................................FOR THE PLAINTIFF
.................................FOR THE 1ST DEFENDANT
................................FOR THE 2ND DEFENDANT
................................FOR THE 3RD DEFENDANT