[2011] KEHC 1571 (KLR)
The court found that the respondent had been duly served with the hearing notice but failed to file any response or attend the hearing. The applicant abandoned the alternative prayer and pressed for the main relief to set aside the consent order. Given the lack of opposition and proper service, the court held that...
Source-derived case information.
- Citation
- [2011] KEHC 1571 (KLR)
- Parties
- Applicant: Francis Gikonyo; Respondent: Thindigua Company Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Winding Up Cause 10 of 2010
- Procedural Posture
- Winding Up Cause / Ruling on Application to Set Aside Consent Order
- Outcome
- Application allowed. Consent order set aside. Petition to proceed to hearing.
- Judges
- CM Njagi
- Legal Topics
- Winding Up Petition, Consent Orders, Company Liquidation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Gikonyo
Applicant
Thindigua Company Limited
Respondent
Procedural Posture
Winding Up Cause / Ruling on Application to Set Aside Consent Order
Legal Issues
- 1 Whether the consent order dated 6th September, 2010 should be set aside to allow the petition to proceed to hearing.
- 2 Whether the application was unopposed and the applicant entitled to the orders sought.
Ratio Decidendi
The court found that the respondent had been duly served with the hearing notice but failed to file any response or attend the hearing. The applicant abandoned the alternative prayer and pressed for the main relief to set aside the consent order. Given the lack of opposition and proper service, the court held that the applicant was entitled to the orders sought. The consent order dated 6th September, 2010 was set aside and the petition was ordered to proceed to hearing.
Court Disposition
Application allowed. Consent order set aside. Petition to proceed to hearing.
Orders
- The consent order dated 6th September, 2010 is set aside.
- The petition shall proceed to hearing.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
COMMERCIAL & TAX DIVISION – MILIMANI
WINDING UP CAUSE NO. 10 OF 2010
IN THE MATTER OF THINDIGUA COMPANY LIMITED
AND
IN THE MATTER OF THE COMPANIES ACT CAP 486 LAWS OF KENYA
FRANCIS GIKONYO..................................................................................................PETITIONER/APPLICANT
VERSUS
THINDIGUA COMPANY LIMITED..............................................................................................RESPONDENT
RULING
The application before the court is brought by a notice of motion dated 23rd March, 2011, and taken out under Section 3A of the Civil Procedure Act and all other enabling provisions of the law. The petitioner/applicant prays for orders that –
(1)This Honourable court be pleased to vary and/or set aside the consent order dated 6th September, 2010 and order that the petition proceeds to hearing.
(2)In the alternative, this Honourable court be pleased to enter the said consent as final order of this cause, effectively winding up the respondent.
(3)The costs of this application be provided for.
The application is supported by the annexed affidavit sworn on 23rd March, 2011 by Njugi B Gachogu, an Advocate of the High Court of Kenya.
By an affidavit sworn by Benard M Musyoka, a duly authorized court process server, the deponent deposes that the respondent’s Advocates were served with a notice to the effect that the matter was coming up for hearing on 12th May, 2011. The hearing notice was served on the respondent’s Advocates on 29th March, 2011. The said Advocates’ rubber stamp shows that they received the said letter at 12. 50 pm.
When the matter came for hearing inter partes, Mr Njugi appeared for the applicant while the defendants did not attend court at all. Being satisfied that the respondents were served in sufficient time to attend court, the matter proceeded ex parte.
It is instructive that the respondents did not file any replying affidavit or grounds of opposition. On the scheduled hearing date, they did not attend court. On that basis, Mr Njugi for the applicant told the court that he wished to abandon prayer (2) and sought prayer (1).
It is clear from this background that the application was not opposed and the applicant was thereby entitled to the orders as prayed. I accordingly set aside the consent order dated 6th September, 2010 and order that the petition herein do proceed to hearing in terms of prayer (1).
It is so ordered.
Costs in the cause.
DATED and DELIVERED at NAIROBI this 28th day of July, 2011.
L NJAGI
JUDGE