[2013] KEHC 6740 (KLR)
The court found that the issues in Nairobi HCCC No. 268 of 2011, which concern a dispute over company management between directors/shareholders, are fundamentally different from the simple contractual issues in the Mombasa CMCC cases, which pertain to the sale and purchase of motor vehicles. The mere fact that some...
Source-derived case information.
- Citation
- [2013] KEHC 6740 (KLR)
- Parties
- Applicant: James Omare Oino; Respondent: Tokinori Kono; Respondent: Koja Motors Limited; Respondent: Koons Motors Limited; Respondent: Adasim Agencies Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 178 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion for Transfer and Consolidation of Suits
- Outcome
- application dismissed with costs to the respondents
- Judges
- DW Mbuteti
- Legal Topics
- Transfer of Suits, Consolidation of Suits, Case Management, Arbitration Clauses
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Omare Oino
Applicant
Tokinori Kono
Respondent
Koja Motors Limited
Respondent
Koons Motors Limited
Respondent
Adasim Agencies Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion for Transfer and Consolidation of Suits
Legal Issues
- 1 Whether the Mombasa CMCC cases should be withdrawn and transferred to the High Court, Nairobi for trial and disposal.
- 2 Whether the three suits should be consolidated for joint trial and disposal.
- 3 Whether the issues in the three suits are sufficiently similar to warrant consolidation.
Ratio Decidendi
The court found that the issues in Nairobi HCCC No. 268 of 2011, which concern a dispute over company management between directors/shareholders, are fundamentally different from the simple contractual issues in the Mombasa CMCC cases, which pertain to the sale and purchase of motor vehicles. The mere fact that some vehicles in the Mombasa suits are also mentioned in the High Court suit does not create sufficient similarity in law or fact to justify consolidation. The court held that consolidation would not achieve expediency but would instead hinder the just, expeditious, proportionate, and affordable resolution of the cases as required by section 1A of the Civil Procedure Act....
Court Disposition
application dismissed with costs to the respondents
Orders
- The notice of motion dated 28th February 2013 is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
HC MISC. APPLICATION NO. 178 OF 2013
JAMES OMARE OINO…..….…….................................... APPLICANT
VERSUS
TOKINORI KONO
KOJA MOTORS LIMITED
KOONS MOTORS LIMITED
ADASIM AGENCIES LIMITED............…...….…RESPONDENTS
R U L I N G
1. The application by notice of motion dated 28th February 2013 seeks three main orders -
(i) Withdrawal of Mombasa CMCC No. 2009 of 2011 (Adasim Agencies Limited – vs – Koons Motors Limited) and Mombasa CMCC No. 2010 of 2011 (Adasim Agencies Limited – vs – Koons Motors Limited) from the Chief Magistrates’ Court and transfer of the same to the High Court, Nairobi for trial and disposal.
(ii) If that order is granted, then consolidation of the two suits and with Nairobi HCCC No. 268 of 2011 (Tokinori Kono & 2 Others –vs- James Omare Oino) pending before this court for trial and disposal together.
(iii) That the three suits do proceed to trial from where they had reached.
2. The application has been made by James Omare Oino, the defendant in Nairobi HCCC No. 268 of 2011. He has sworn an affidavit in support to which he has annexed the plaints in the three suits, among other documents. He has also sworn a supplementary affidavit filed on 20th March 2013.
3. The plaintiff in the two Mombasa cases (Adasim Agencies Limited) has opposed the application by replying affidavit filed on 19th April 2013 which is sworn by a director of the company.
4. Tokinori Kono, the first plaintiff in Nairobi HCCC No. 268 of 2011, has also opposed the application by grounds of opposition dated and filed on 16th May 2013. No other party has filed any papers in response to the application.
5. I have considered the submissions of the learned counsels made at the hearing of the application on 11th July 2013. I have also perused the plaints in the three suits. No statements of defence have been exhibited.
6. I had occasion to deal with a preliminary objection raised by the defendants in Nairobi HCCC No. 268 of 2011. In a ruling dated and delivered on 16th March 2012 I observed that the suit was primarily a dispute between the first plaintiff (Tokinori Kono) and the first defendant (James Omare Oino) over the managementof the second and third plaintiffs (Koja Motors Limited and Koons Motors Limited) of which they were the only directors and shareholders.
7. I also observed that the Articles of Association of the two companies (Koja Motors Limited and Koons Motors Limited) had arbitration clauses, and that the dispute was likely to be referred to arbitration in terms of the arbitration clauses.
8. On the other hand, the Mombasa cases, CMCC No 2009 of 2011 and CMCC No. 2010 of 2011, seek to enforce simple contracts for sale and purchase of motor vehicles. The two suits are between Adasim Agencies Limited (as plaintiff in both) and Koons Motors Limited and Koja Motors Limited (each the defendant in one or the other suit).
9. I do not find the same or similar questions of law or fact in Nairobi HCCC No. 268 of 2011 and the two Mombasa cases. The issues in the High Court case are totally different from the simple contractual issues in the Mombasa cases, notwithstanding that the motor vehicles the subject-matter of the Mombasa suits may be some of the very many motor vehicles mentioned in the plaint in Nairobi HCCC No. 268 of 2011. Consolidation of the three suits, rather than achieve expediency, would actually hinder the just, expeditious, proportionate and affordable resolution of the cases (section 1A of the Civil Procedure Act, Cap 21).
10. The notice of motion dated 28th February 2013 is entirely without merit. It is hereby dismissed with costs to the Respondents. It is so ordered.
DATED AND SIGNED AT NAIROBI THIS 24TH DAY OF OCTOBER 2013
H. P. G. WAWERU
JUDGE
DELIVERED AT NAIROBI THIS 25TH DAY OF OCTOBER 2013