[2017] KEHC 1130 (KLR)
The court declined to determine the motion to amend the consent order because there was no evidence that Chege Wainaina & Co. Advocates, a party directly affected by the proposed amendment, had been served with the application. Proceeding in their absence would violate the principles of natural justice and fair...
Source-derived case information.
- Citation
- [2017] KEHC 1130 (KLR)
- Parties
- Plaintiff: Githara Chuchu & 473 Others; Defendant: Gititu Coffee Growers Co-op Society Ltd; Defendant: Kenya Planters Co-op Union
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 3619 of 1983
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Motion
- Outcome
- Motion not determined; applicants directed to serve Chege Wainaina & Co. Advocates and fix for interpartes hearing.
- Judges
- JK Sergon
- Legal Topics
- Amendment of Consent Orders, Representation of Parties, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Githara Chuchu & 473 Others
Plaintiff
Gititu Coffee Growers Co-op Society Ltd
Defendant
Kenya Planters Co-op Union
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Motion
Legal Issues
- 1 Whether the consent order dated 28.7.2008 should be amended to substitute the firm of Chege Wainaina & Co. Advocates with Nabutete & Co. Advocates as signatories to the joint account.
- 2 Whether it is proper to proceed with the motion in the absence of evidence of service upon Chege Wainaina & Co. Advocates.
Ratio Decidendi
The court declined to determine the motion to amend the consent order because there was no evidence that Chege Wainaina & Co. Advocates, a party directly affected by the proposed amendment, had been served with the application. Proceeding in their absence would violate the principles of natural justice and fair hearing. The applicants were directed to serve the motion upon Chege Wainaina & Co. Advocates and have the matter fixed for interpartes hearing, ensuring all affected parties have an opportunity to be heard before any amendment is considered.
Court Disposition
Motion not determined; applicants directed to serve Chege Wainaina & Co. Advocates and fix for interpartes hearing.
Orders
- Applicants to serve the motion upon Chege Wainaina & Co. Advocates.
- Motion to be fixed for interpartes hearing by the registry.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL SUIT NO. 3619 OF 1983
GITHARA CHUCHU & 473 OTHERS.........................................PLAINTIFFS/ APPLICANTS
-V E R S U S –
GITITU COFFEE GROWERS CO-OP SOCIETY LTD......1ST DEFENDANT/RESPONDENT
KENYA PLANTERS CO-OP UNION ................................2ND DEFENDANT/RESPONDENT
RULING
1. The plaintiffs/applicants herein took out the motion dated 15. 11. 2017 in which they sought for inter alia, the consent order dated 28. 7.2008 to be amended by removing the name of M/S Chege Wainaina & Co. Advocates from the joint account in which ksh.5,000,000/= was deposited and to substitute the same with the name of M/s Nabutete & Co. Advocates so that the said account is under the new names of M/S H.H.& M advocates and M/S Nabutete & Co. Advocates from the date of amendment. When the motion came up for interpartes hearing, Mr. Ochieng learned advocate for the 2nd defendant/respondent appeared and informed this court that he had no objection to the motion. There is no evidence to show that the firm of M/s Chege Wainaina & Co. Advocates was served and that may be the reason why that firm was not represented in court.
2. There is no dispute that the main prayer being sought is for the firm of M/s Nabutete & Co. Advocates to replace the firm of Chege Wainaina & Co. Advocates to be a party and signatory in a bank account at Commercial Bank of Africa. In view of the fact that there is no evidence of service upon the firm of M/s Chege Wainina & Co. Advocate, it will be unfair to proceed with the motion without the participation of the aforesaid firm of advocates.
3. It is apparent from the averments of the applicants that the firm of Chege Wainaina & Co. Advocates is opposed to the motion. Consequently, I decline to determine the motion and direct the applicants to have the same served upon the firm of Chege Wainaina & Co. Advocates. The motion to be fixed for interpartes hearing by the registry.
Dated, Signed and Delivered in open court this 21st day of December, 2017.
J. K. SERGON
JUDGE
In the presence of:
................................................for the Plaintiff
................................................ for the Defendant