[2012] KEHC 1875 (KLR)
The court found that the change of name from Nyanza Petroleum Dealers Ltd to Auto Express Ltd and the subsequent transfer of the suit property fundamentally altered the legal status of the defendant. As a result, the application by the defendant was incompetent because the pleadings had not been amended to reflect...
Source-derived case information.
- Citation
- [2012] KEHC 1875 (KLR)
- Parties
- Plaintiff: Kenya Railways Corporation; Defendant: Nyanza Petroleum Dealers Ltd (now Auto Express Ltd)
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 149 of 2007
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- preliminary objection allowed in part; defendant's application dismissed with costs
- Legal Topics
- Preliminary Objection, Change of Parties, Amendment of Pleadings, Contempt of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Railways Corporation
Plaintiff
Nyanza Petroleum Dealers Ltd (now Auto Express Ltd)
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the application by the defendant is incompetent due to change of name and legal status of the defendant.
- 2 Whether the defendant is in contempt of court orders and if this can be determined via preliminary objection.
- 3 Whether the pleadings require amendment following the change of name and transfer of property.
Ratio Decidendi
The court found that the change of name from Nyanza Petroleum Dealers Ltd to Auto Express Ltd and the subsequent transfer of the suit property fundamentally altered the legal status of the defendant. As a result, the application by the defendant was incompetent because the pleadings had not been amended to reflect the new legal entity. The court rejected the argument that both companies are the same, emphasizing that they are separate legal entities regardless of possible common directorship. The court also held that allegations of contempt cannot be determined through a preliminary objection but must be raised in substantive proceedings. Consequently, the court allowed the first prayer...
Court Disposition
preliminary objection allowed in part; defendant's application dismissed with costs
Orders
- Prayer (1) of the preliminary objection is allowed.
- The application dated 28th July 2011 is dismissed with costs.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
CIVIL CASE 149 OF 2007
KENYA RAILWAYS CORPORATION ….........................................PLAINTIFF
VERSUS
NYANZA PETROLEUM DEALERS ….......................................... DEFENDANT
RULING
The preliminary objection by the plaintiff dated 27th March 2012 prays for the following orders:-
(1)The application is incompetent as the defendant as described in its defence no longer exist and yet no application has been made by the 1st defendant under Order 8 (3) and
(2)The documents exhibited in support of the application establish that the 1st defendant is in contempt of the court Order dated 29th February 2001 wherefore it ought to purge its contempt before being heard.
The said preliminary objection is in opposition to the applicant/defendant application dated 28th July 2012 seeking to discharge the injunction orders in favour of the plaintiff.
Mr. Okerofor the plaintiff argued that the application cannot stand as the applicant Nyanza Petroleum Dealers Ltd has been changed to Auto Express Ltd per the certificate of change of name dated 26th June 2008. It further transferred the suit property into that name on 8th June 2009.
The above changes were not objected to by Mr. Odeny but his argument is that the same does not oust the ability of the new company to make suit application.
Mr. Okero further argued that by undertaking such fundamental changes the defendant were in fact in contempt of the orders they are seeking to discharge.
After carefully hearing the parties herein I am persuaded that the change of name of the 1st defendant and the subsequent transfer of the suit property fundamentally changed the landscape. There ought to be an amendment to the pleading. It is not true as argued by Mr. Odeny Advocate that both are one and the same. Although the directors could be the same, (no evidence tendered though) the two are separate and distinct legal entities. Execution for example cannot be levied against Nyanza petroleum Dealers Ltd anymore. Neither can Auto Express Ltd be executed in place of Nyanza Petroleum Dealers Ltd.
The question of whether the defendant/applicant is in contempt or not is an issue of fact to be raised through an appropriate proceedings but not by way of a preliminary objection.
In the premises I do allow prayer (1) of the preliminary objection. The application dated 28th July 2011 is dismissed with costs. Meanwhile undertaking into consideration the age of this matter the parties should move the court within the next 60 days from the date of the delivery of this Ruling to have the same heard.
Dated, signed and delivered at Kisumu this 15TH day of OCTOBER 2012
H. K. CHEMITEI
JUDGE
In the presence of:
…………………………………Advocate for the Plaintiff
…………………………....…Advocate for the defendant
HKC/aao