[2012] KEHC 806 (KLR)
The court found that the matter was erroneously fixed for hearing on 18th June, 2010, contrary to the cause list of 20th May, 2010, which indicated that a fresh date was to be taken after 18th June, 2010. The dismissal of the petition for non-appearance was therefore a result of a procedural error and not due to any...
Source-derived case information.
- Citation
- [2012] KEHC 806 (KLR)
- Parties
- Respondent: Continental B.P.O. Limited; Applicant: Anne Wambui Kibicho
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Winding Up Cause 32 of 2009
- Procedural Posture
- Winding Up Cause / Application for Reinstatement After Dismissal for Non Appearance
- Outcome
- petition reinstated
- Judges
- CM Njagi, DO Ogembo
- Legal Topics
- Reinstatement of Petition, Dismissal for Non Appearance, Company Winding Up, Procedural Fairness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Continental B.P.O. Limited
Respondent
Anne Wambui Kibicho
Applicant
Procedural Posture
Winding Up Cause / Application for Reinstatement After Dismissal for Non Appearance
Legal Issues
- 1 Whether the dismissal of the winding up petition for non-appearance was proper in the circumstances.
- 2 Whether the petition should be reinstated given the procedural error in listing the matter for hearing.
Ratio Decidendi
The court found that the matter was erroneously fixed for hearing on 18th June, 2010, contrary to the cause list of 20th May, 2010, which indicated that a fresh date was to be taken after 18th June, 2010. The dismissal of the petition for non-appearance was therefore a result of a procedural error and not due to any fault of the parties. In the interests of justice and fairness, the court exercised its discretion to reinstate the winding up petition as prayed by the applicant.
Court Disposition
petition reinstated
Orders
- The Winding Up Petition dated 23rd October, 2009 is reinstated as prayed.
- Costs in the cause.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
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IN THE MATTER OF CONTINENTAL B.P.O. LIMITED
AND IN THE MATTER OF COMPANIES ACT (CAP 486) LAWS OF KENYA
RULING
This winding up cause was dismissed on 18th June, 2010 for non appearance by any of the parties. By this application the Petitioner seeks a reinstatement of the Petition and relies on Order 12 Rule 7; Order XLI Rule 1 of the Civil Procedure Rules,and Section 221(1) of the Companies Act.
The application is supported by the annexed affidavit of Anne Wambui Kibicho, the Advocate having the conduct of this matter on behalf of the Applicant, and is based on the grounds that-
(i)The case among others was taken out of the hearing list on 20th May, 2010 and fresh dates were to be taken after 18th June, 2010.
(ii)The matter was accidentally listed for hearing on 18th June, 2010 without the knowledge of the Petitioner’s advocates and it was subsequently dismissed for non-attendance.
(iii)In the circumstances it is fair and just that this application be allowed unconditionally.
(iv)That it is in the interest of justice that the orders sought be granted.
According to a minute on the court file dated 29th April, 2010, the matter was fixed for hearing on 18th June, 2010. None of the parties attended court on that day, thereby leading to the dismissal of the Petition. However, according to the cause list of 20th May, 2000, that matter, along with 11 others, were supposed to be given a fresh date at the registry after 18th June, 2010 (emphasis added). Consequently, the matter was fixed for hearing on 18th June, 2010 in error. In the circumstances, the dismissal was also in error.
I accordingly hereby reinstate the Winding Up Petition dated 23rd October, 2009 as prayed.
Costs in the cause.
L. NJAGI
JUDGE
DATEDand DELIVERED at NAIROBI this 16th day of November, 2012.
OGOLA
JUDGE