[2008] KEHC 1838 (KLR)
The court held that since the suit had been withdrawn by consent of both parties on 21st May 2007, and no application had been made to review or reinstate the suit, there was no suit in existence. As a result, the court lacked jurisdiction to entertain the present application for variation of orders or substitution...
Source-derived case information.
- Citation
- [2008] KEHC 1838 (KLR)
- Parties
- Plaintiff: Joseph Kibuba Kioko; Plaintiff: Judas Mbili Ndawa; Plaintiff: Patric Pius Mutune Katubi; Defendant: Mangu Ngolo; Defendant: Kyanzavi Farmers Company Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 101 of 2007
- Procedural Posture
- Civil Case / Ruling on Post Settlement Application
- Outcome
- application dismissed
- Judges
- MA Warsame
- Legal Topics
- Withdrawal of Suit, Consent Orders, Company Bank Accounts, Variation of Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Kibuba Kioko
Plaintiff
Judas Mbili Ndawa
Plaintiff
Patric Pius Mutune Katubi
Plaintiff
Mangu Ngolo
Defendant
Kyanzavi Farmers Company Limited
Defendant
Procedural Posture
Civil Case / Ruling on Post Settlement Application
Legal Issues
- 1 Whether the court can entertain an application for variation of orders when the main suit has been withdrawn by consent.
- 2 Whether the application for substitution of bank signatories is maintainable in the absence of an existing suit.
Ratio Decidendi
The court held that since the suit had been withdrawn by consent of both parties on 21st May 2007, and no application had been made to review or reinstate the suit, there was no suit in existence. As a result, the court lacked jurisdiction to entertain the present application for variation of orders or substitution of bank signatories. Entertaining such an application would amount to an abuse of the court process. The application was therefore dismissed.
Court Disposition
application dismissed
Orders
- The application is dismissed with no orders as to costs.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Case 101 of 2007
JOSEPH KIBUBA KIOKO …………..……………………1ST PLAINTIFF
JUDAS MBILI NDAWA ………………………..………….2ND PLAINTIFF
PATRIC PIUS MUTUNE KATUBI ………….…..………..3RD PLAINTIFF
VERSUS
MANGU NGOLO ……………………………..…....…….1ST DEFENDANT
KYANZAVI FARMERS COMPANY LIMITED…...…….2ND DEFENDANT
RULING
In this application the applicants seek two orders:
(1) THAT, the Honourable Court be pleased to vary the order made on 21st May 2007 and order for substitution of Mangu Ngolo, Jackson Musyimi (deceased) and Juvenalis Musyoki Kavita as signatories to the company’s bank accounts and replace them with Patric Pius Mutune Katubi and Christopher Kasango Kanyambu.
(2) THAT, the Honourable Court do order that the Signatories to the company’s bank accounts shall be:-
(i) Patric Lius Mutune Katubi – chairman
(ii) Judas Mbili Ndawa - Treasurer
(iii) Christopher Kasangu Kanyambu – Secretary
Having considered the application and submissions by the learned counsels for the parties it is my humble view that the application cannot lie in law as there is no suit in existence in the light of the consent order made herein on 21st May 2007 between the parties herein. On 21st May, 2007 Mr. Mogire learned counsel for the plaintiff/applicant and Mr. Sehmi for the defendant/respondent appeared before this court and recorded a consent and one of the terms to the said consent was that:
“By consent the suit herein dated 23rd February 2007 and filed on the same day and the chamber summons dated and filed on 23rd February, 2007 are hereby withdrawn and marked as settled”.
Since that order was recorded, none of the parties made an application to review and/or reinstate the suit for purposes of obtaining further orders and/or seeking further intervention of this Honourable court. It is therefore my humble view that the present application is an abuse of the process of this court since there is no suit in existence between the parties the same having been withdrawn on 21st May 2007. In the premises the application is dismissed with no orders as to costs.
Dated, signed and delivered at Nairobi this 19th day of May, 2008.
M. A. WARSAME
JUDGE