[2016] KEHC 308 (KLR)
The court found that Titus Thuo Macharia had not been properly substituted as the personal representative of the deceased 1st petitioner, Gichuhi Macharia. There was no application for substitution nor an order allowing it on record. Consequently, Titus Thuo Macharia lacked locus standi to seek withdrawal of the...
Source-derived case information.
- Citation
- [2016] KEHC 308 (KLR)
- Parties
- Applicant: Gichuhi Macharia; Applicant: Duncan Mwaura Kamau; Respondent: Kiai Mbaki; Respondent: Waweru Mugo; Respondent: Thiongo Kiunga; Respondent: Titus Thuo Macharia; Respondent: Anthony Macharia Gichuhi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Winding Up Cause Cause1 of 2000
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Withdraw Petition
- Outcome
- Notice of withdrawal struck out for want of locus standi.
- Judges
- F Tuiyott
- Legal Topics
- Withdrawal of Petition, Locus Standi, Company Winding Up, Personal Representatives, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gichuhi Macharia
Applicant
Duncan Mwaura Kamau
Applicant
Kiai Mbaki
Respondent
Waweru Mugo
Respondent
Thiongo Kiunga
Respondent
Titus Thuo Macharia
Respondent
Anthony Macharia Gichuhi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Withdraw Petition
Legal Issues
- 1 Whether Titus Thuo Macharia had locus standi to withdraw the petition on behalf of the estate of Gichuhi Macharia.
- 2 Whether the notice of withdrawal filed on 5th May 2016 was valid and effective.
- 3 Whether the court should allow the withdrawal of the petition in the circumstances.
Ratio Decidendi
The court found that Titus Thuo Macharia had not been properly substituted as the personal representative of the deceased 1st petitioner, Gichuhi Macharia. There was no application for substitution nor an order allowing it on record. Consequently, Titus Thuo Macharia lacked locus standi to seek withdrawal of the petition on behalf of the estate. The notice of withdrawal filed on 5th May 2016 was therefore invalid and was struck out. Costs were awarded to the 2nd petitioner and the respondents.
Court Disposition
Notice of withdrawal struck out for want of locus standi.
Orders
- The Notice of Withdrawal of 5th May, 2016 is hereby struck out.
- Costs of the proceedings in respect to the withdrawal are awarded to the 2nd petitioner and the respondents.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL & ADMIRALTY DIVISION
WINDING UP CAUSE NO 1 OF 2000
IN THE MATTER OF COMPANIES ACT (CAP 486 OF THE LAWS OF KENYA)
GICHUHI MACHARIA………………….………………..1ST PETITIONER
DUNCAN MWAURA KAMAU………………...………..2ND PETITIONER
VERSUS
KIAI MBAKI……………………………………..………1ST RESPONDENT
WAWERU MUGO………………………………….……2ND RESPONDENT
THIONGO KIUNGA……………………..………………3RD RESPONDENT
AND
IN THE HIGH COURT OF KENYA AT MILIMANI
MISC CIVIL APPLICATION NO 555 OF 2014
WAWERU MUGO & 19 OTHERS………………………….APPLICANTS
VERSUS
TITUS THUO MACHARIA & ANTHONY MACHARIA GICHUHI
(SUED AS THE MANAGERS/ADMINISTRATORS OF THE ESTATE OF
GICHUHI MACHARIA (UNSOUND MIND)…..................RESPONDENTS
RULING
1. This Court is asked by the 1st Petitioner herein to give effect to the Notice of withdrawal of the Petition filed herein on 5th May 2016.
2. The quest to withdraw is opposed by the Respondents and the 2nd petitioner on three main grounds. The Applicant lacks locus standi to withdraw the Petition. Secondly an Order of Court granted herein on 22nd March 2016 has taken effect and the Notice of withdrawal has been overtaken by events. Another reason is that the Petitioners have subsequently amended the Petition and therefore the original Petition that the Petitioner seeks to withdraw does not exist.
3. As a general proposition, the right of a party to discontinue a suit or withdraw a claim cannot be questioned(see the decision of the Supreme Court in Nicholas Kiptoo Arap Korir Salat vs. IEBC & 7 Others SC Appeal No.16 of 2014). However a Court may decline such withdrawal if the withdrawal or discontinuanceis intended to achieve an illegitimate outcome or is one driven by malafides (see the Court of Appeal Decision in Civil Appeal No.1 of 2015 Beijing Industrial Designing & Researching Institute Vs. Lagoon Development Limited [2015]eKLR.
Is there any reason why this Court should not allow the withdrawal sought?
4. The locus of Titus Thuo Macharia to withdraw the Petition is questioned. It is said that the 1st Petitioner is dead and no Personal Representatives to his Estate have been appointed. It is true that in the Petition as originally presented the 1st Petitioner was Gichuki Macharia and it is common ground that he has since passed on.
5. Although Mr. Kirundi told Court that the 1st Petitioner had been substituted by the Administrator to his Estate, the Court has gone through the Proceedings and Record and has neither seen an Application for substitution nor an Order allowing it.
6. It would seem therefore that Titus Thuo Macharia may for now be lacking locus to seek the withdrawal of the Petition on behalf of the Estate of Gichuhi Macharia.
7. The Notice of Withdrawal of 5th May, 2016 is hereby struck out.
8. Costs of the Proceedings in respect to the withdrawal to the 2nd Petitioner and the Respondents.
Dated, Signed and Delivered in Court at Nairobi this 20thDay of December, 2016.
F. TUIYOTT
JUDGE
PRESENT;
Ndirangu holding for Kirundi for 1st Petitioner
Wangalwa for 2nd Petitioner
Wangalwa for Gachomo for Terrace Hotels
Alex - Court Clerk