[2013] KEHC 4883 (KLR)
The court found that, despite the defendant's assertion that the main dispute had been resolved in other proceedings, it was not apparent from the record that the issues in the present suit had been conclusively determined elsewhere. The court emphasized the need to preserve the only asset of the 1st defendant, a...
Source-derived case information.
- Citation
- [2013] KEHC 4883 (KLR)
- Parties
- Plaintiff: Joseph Thiongo Waweru & Another; Defendant: Kihiumwiri Farmers Company Ltd & Others
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 449 of 2011
- Procedural Posture
- Interlocutory Application / Ruling on Interim Injunction
- Outcome
- Interim injunction granted; suit transferred to Commercial Division; costs in the application.
- Judges
- DW Mbuteti
- Legal Topics
- Company Management Disputes, Injunctive Relief, Asset Preservation, Land Subdivision, Shareholder Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Thiongo Waweru & Another
Plaintiff
Kihiumwiri Farmers Company Ltd & Others
Defendant
Procedural Posture
Interlocutory Application / Ruling on Interim Injunction
Legal Issues
- 1 Whether the plaintiffs are entitled to an interim injunction restraining the defendants from dealing with L.R. 9214 and its subdivisions pending the election and confirmation of new directors.
- 2 Whether the only asset of the 1st defendant should be preserved pending the hearing of the application inter partes.
- 3 Whether the main dispute in the present suit has already been determined in other proceedings.
Ratio Decidendi
The court found that, despite the defendant's assertion that the main dispute had been resolved in other proceedings, it was not apparent from the record that the issues in the present suit had been conclusively determined elsewhere. The court emphasized the need to preserve the only asset of the 1st defendant, a parcel of land, pending the full hearing of the application inter partes. The risk of alienation or dissipation of the asset justified the grant of an interim injunction. The court also determined that the matter should be transferred to the Commercial Division, as it concerns company management and falls within the commercial jurisdiction. The balance of convenience and the...
Court Disposition
Interim injunction granted; suit transferred to Commercial Division; costs in the application.
Orders
- Interim injunction granted restraining the defendants from subdividing, selling, disposing, charging or otherwise alienating or dealing in any manner whatsoever with L.R. 9214 or any of its subdivisions including land reference numbers 9214/1, 9214/2, 9214/3, 9214/4, 9214/5, 9214/6 and 9214/7 until hearing and...
- The suit is transferred to the Commercial Division of the High Court.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
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JOSEPH THIONGO WAWERU & ANOTHER…………...................................... PLAINTIFFS
VERSUS
KIHIUMWIRI FARMERS COMPANY LTD & OTHERS ....................................DEFENDANTS
RULING ON INTERLOCUTORY RELIEF
1. The Plaintiffs have sought by notice of motion dated 15th February 2013 one main relief as follows –
“The defendants be restrained by way of injunction either by themselves, servants, agents and or employees from subdividing, selling, disposing, charging or otherwise alienating or dealing in any manner whatsoever with L.R. 9214 or any of its subdivisions including land reference numbers 9214/1, 9214/2, 9214/3, 9214/4, 9214/5, 9214/6 and 9214/7 until elections and confirmation in office of new directors of Kihiumwiri Farmers Company Ltd.”
They have also sought interim injunction in the same terms pending hearing and disposal of the application inter partes.
2. When the matter was placed before me under certificate of urgency on 18th February 2013 I directed that the application be served forthwith for mention inter partes on 20th February 2013. Service was duly effected and the 1st Defendant was represented by counsel at the mention of 20th February 2013. The 4th and 8th Defendants appeared in person. There was no appearance for the other Defendants.
3. The 1st Defendant filed a replying affidavit on 20th February 2012 to which a number of documents were annexed. The issue of interim injunction was then canvassed as between the Plaintiffs and the 1st Defendant. I have considered what their learned counsels submitted. I have also perused the court record and the many documents annexed to both the supporting affidavit and the 1st Defendant’s replying affidavit.
4. Both learned counsels are in agreement that the main issue in this suit is the management of the 1st Defendant, which is a limited liability company duly incorporated under the Companies Act, Cap 486. This suit therefore involves a commercial dispute as defined in the Circular Letter issued by the then Chief Justice A M Cocker in 1997. The suit therefore belongs to the Commercial Division of the High Court and not to the Civil Division.
6. I will therefore direct that this suit be transferred to the Commercial Division.
7. But in the interests of justice I must decide first whether or not to grant interim relief upon the application at hand as sought by the Plaintiffs. It does appear from what is deponed in the supporting affidavit that the only asset of the 1st Defendant, a piece of land, has already been sub-divided and that titles for the resulting parcels are in the process of being prepared for issuance. The 1st Defendant has conceded that indeed its parcel of land has been sub-divided, but it contends that the said subdivision was done some time ago and certainly before an order entered herein on 27th October 2011 (Mwera, J), which order stated
“that sub-division of the land and issuing of titles may not take place until other orders follow”.
8. The 1st Defendant has not denied that titles for the resulting parcels are indeed under preparation. The line it has adopted is that the main issue in this suit was decided in a number of other proceedings which are mentioned in the replying affidavit.
9. I have perused the various orders issued in those other proceedings which are annexed to the replying affidavit. It is not readily apparent that indeed the main dispute in the present suit has been determined in those other suits. If that were so, I cannot understand why the 1st Defendant has allowed the suit to remain alive. I think the issue whether or not there is anything still remaining of the present suit to go to trial ought to be canvased fully and properly when the application is heard.
10. For now I am persuaded that it is in the best interests of justice that the only asset of the 1st Defendant be preserved at, least pending hearing of the application inter partes. I will therefore grant interim injunction in terms of prayer 2 of the application.
11. The matter shall be mentioned before the Commercial Division on a date to be given now. Costs shall be in the application. It is so ordered.
DATED AND SIGNED AT NAIROBI THIS 21ST DAY OF FEBRUARY 2013
H. P. G. WAWERU
JUDGE
DELIVERED AT NAIROBI THIS 22ND DAY OF FEBRUARY 2013