[2018] KEHC 1728 (KLR)
The court found that since the statement of defence had just been filed and pleadings were not yet closed, it was unnecessary to grant leave to amend at this stage, but allowed any amendment to be done within 7 days due to the urgency of the matter. The court further held that, given the admitted sale and assignment...
Source-derived case information.
- Citation
- [2018] KEHC 1728 (KLR)
- Parties
- Plaintiff: Juja Coffee Exporters Limited; Defendant: National Bank of Kenya Limited; Defendant: Virgin Packaging Limited
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 95 of 2018
- Procedural Posture
- Civil Case / Interlocutory Application Ruling
- Outcome
- Interim injunction granted; directions issued for expedited hearing and further affidavits/submissions.
- Judges
- CA Otieno
- Legal Topics
- Interlocutory Injunctions, Leave to Amend Pleadings, Supplementary Affidavit, Sale of Property, Joinder of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Juja Coffee Exporters Limited
Plaintiff
National Bank of Kenya Limited
Defendant
Virgin Packaging Limited
Defendant
Procedural Posture
Civil Case / Interlocutory Application Ruling
Legal Issues
- 1 Whether the plaintiff should be granted leave to file and serve a supplementary affidavit.
- 2 Whether leave to amend pleadings should be granted to the plaintiff at this stage.
- 3 Whether an interim order of injunction should be granted to preserve the subject matter of the suit.
Ratio Decidendi
The court found that since the statement of defence had just been filed and pleadings were not yet closed, it was unnecessary to grant leave to amend at this stage, but allowed any amendment to be done within 7 days due to the urgency of the matter. The court further held that, given the admitted sale and assignment of the property, there was a real risk that the subject matter of the dispute would be lost if further alienation was permitted. To preserve the substratum of the suit and ensure the dispute could be properly adjudicated, the court granted an interim order restraining further steps to alienate the property pending further orders. The court also issued directions for expedited...
Court Disposition
Interim injunction granted; directions issued for expedited hearing and further affidavits/submissions.
Orders
- Leave granted to plaintiff to file and serve supplementary affidavit within 7 days.
- Any amendment to pleadings by plaintiff to be done within 7 days.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL CASE NO. 95 OF 2018
JUJA COFFEE EXPORTERS LIMITED...........................PLAINTIFF
VERSUS
1. NATIONAL BANK OF KENYA LIMITED
2. VIRGIN PACKAGING LIMITED............................DEFENDANTS
R U L I N G
1. There being no opposition to the request by the plaintiff to file and serve a supplementary affidavit, leave is granted to the counsel tofile and serve same within 7 days from today.
2. On leave to amend, I notice that the statement of defence was filed today hence the pleadings are yet to close and accordinglyunder Order 8 Rule 1, it would be a superfluity to grant to the plaintiff any leave to amend. However as the plaintiff came to court under Certificate, any amendment shall be done within 7 days from today.
3. On request to grant an interim Order of injunction, I have read the Replying Affidavit of Paul K. Chaelanga which admit the fact that there has been a sale by private treaty to one Bakhresa Grain Milling (Kenya) Ltd who in turn has assigned its interests to one Ms. Grain Bulk handlers Ltd.
4. The question that arises is what would remain of the plaintiffs suit once the sale is concluded and transfers effected. I see a scenario in which the very substratum of the dispute shall have been effectively destroyed and would have to be reconstructed by inclusion of other parties not party before me as at today.
5. Without going to the merits of the plaintiffs case and that by the Defendant, I consider it just and fair that I do not allow the substraction of the dispute to be dissipated if there has to be sustained a dispute to be determined and resolved by the court. I consider it just and expedient that the subject matter of this litigation be reserved in that no further steps be undertaken to alienate the property pending further orders of the court.
6. Having so said, and it appearing to court that the sums in dispute is colossal, I do direct that the matter be fast tracked and heardbefore the terms ends on 20/12/2018.
7. Consequently, let the defendant be at liberty to file any further affidavit within 7 days from today. Once served with supplementary affidavit parties shall file and exchange written submissions with regard to the application dated 7/11/2018. Hearing shall be on 19/12/2018.
8. It is so ordered.
Dated and delivered at Mombasa this 27thday of November 2018.
P.J.O. OTIENO
JUDGE