[2004] KEHC 384 (KLR)
The court found that there was insufficient evidence that leave of court had been granted to the plaintiff to file suit against Post Bank Credit Ltd, a company under liquidation, as required by section 228 of the Companies Act. The absence of a court order granting such leave in the record was fatal to the...
Source-derived case information.
- Citation
- [2004] KEHC 384 (KLR)
- Parties
- Plaintiff: Emmy Jerobon Bett; Defendant: Rael Cherop Martim; Defendant: V. K. Saina
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- ? 138 of ??
- Procedural Posture
- Civil Case / Ruling on Application for Consolidation
- Outcome
- Application for consolidation dismissed.
- Legal Topics
- Case Consolidation, Leave to Sue Company in Liquidation, Preliminary Objection, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Emmy Jerobon Bett
Plaintiff
Rael Cherop Martim
Defendant
V. K. Saina
Defendant
Procedural Posture
Civil Case / Ruling on Application for Consolidation
Legal Issues
- 1 Whether the suit should be consolidated with Eldoret HCCC No. 340 of 1997.
- 2 Whether the plaintiff obtained leave of court to file proceedings against a company under liquidation as required by section 228 of the Companies Act.
- 3 Whether the parties in both suits are the same for purposes of consolidation.
Ratio Decidendi
The court found that there was insufficient evidence that leave of court had been granted to the plaintiff to file suit against Post Bank Credit Ltd, a company under liquidation, as required by section 228 of the Companies Act. The absence of a court order granting such leave in the record was fatal to the application. Additionally, the court noted that the parties in the two suits were not identical, as Eldoret HCCC No. 138 of 2000 included a defendant not present in HCCC No. 340 of 1997. Exercising its discretion, the court held that, given the contentious issues and the lack of clear compliance with statutory requirements, consolidation was not appropriate. The application for...
Court Disposition
Application for consolidation dismissed.
Orders
- The application to consolidate Eldoret HCCC No. 138 of 2000 with Eldoret HCCC No. 340 of 1997 is dismissed.
- The two cases shall proceed for hearing separately.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT ELDORET CIVIL CASE NO. 138 OF 2000
EMMY JEROBON BETT :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF
VERSUS
RAEL CHEROP MARTIM & ANO. ::::::::::::::::::::::::::::::::::::::::::::::::::: DEFENDANT
R U L I N G
Before me is an application by way of Chamber summons dated 12th October 2000. It was brought under Order XI Rule 1 Civil Procedure Rules. It seeks for order that this case be consolidated with Eldoret HCCC No.340 of 1997 pending before this court. The application is supported by an affidavit sworn on 27th November 2000 by Emmy Bett the applicant.
At the hearing of the application counsel for the three respondents raised preliminary objections to the application. Basically the trust of the preliminary objections is that this suit is fatally defective and should not be consolidated with HCCC.No.340 of 1997. It was the submission that the provisions of section 228 of the Companies Act were not complied with ie that the plaintiff did not obtain leave of the court to file proceedings against Post Bank Credit Ltd, which was under liquidation.
In response counsel for the applicant submitted that plaintiff/applicant had applied for leave and obtained it on 14/2/2000. He submitted that the documents on the leave granted are missing from the court file. So the court order granting the leave is not in the court file, though leave was so granted. He submitted that leave was granted to file H.C.C.C. No. Eldoret 340/1997 that is why plaintiff is applying to consolidate that case with Eldoret HCCC.138/2000. The application for leave to file suit was through Eldoret HC. Misc. Application 196 of 1999.
I have considered this application and the submissions of the counsel for the parties. The parties to the two suits are not exactly the same as Eldoret HCCC.No.138/2000 has a defendant called V. K. Saina who is not a party in Eldoret HCCC.340 of 20000. I have also perused the documents on Eldoret HC. Misc. Application 196 of 1999 and I am not convinced that the leave to file suit was granted as alleged though it was applied for. The record shows at the top of a page of the record that the matter was stood over to 14/2/2000. There is no further record leaving almost a whole page blank. We cannot presume from a statement from the bar that the leave was granted.
I have discretion in deciding to consolidate the two cases. As there are issues which are quite contentious. I will not consolidate the two cases. In the interests of justice the two cases will proceed for hearing separately.
It is so ordered.
Dated and delivered at Eldoret this ……. day of ………………2004.
George Dulu
Judge
(I certify this a true copy of the original)
DEPUTY REGISTRAR