[2023] KEHC 26188 (KLR)

Kimeto & Associates Advocates v KCB Bank Kenya Limited & 2 others; Sarrai Group Limited & 3 others (Interested Parties); KHAMINWA & KHAMINWA ADVOCATES & 2 others (Creditor) (Insolvency Petition E004 of 2019) [2023] KEHC 26188 (KLR) (Commercial and Tax) (29 November 2023) (Ruling)

Neutral citation: [2023] KEHC 26188 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Insolvency Petition E004 of 2019

JWW Mong'are, J

November 29, 2023

IN THE MATTER OF THE COMPANIES ACT NO. 17 OF 2017 -AND- IN THE MATTER OF THE INSOLVENCY ACT NO. 18 OF 2015 -AND- IN THE MATTER OF MUMIAS SUGAR COMPANY LIMITED

Between

Kimeto & Associates Advocates

Petitioner

and

Kcb Bank Kenya Limited

1st Respondent

Ponangipalli Venkata Ramana Rao

2nd Respondent

Mumias Sugar company (In Receivership & Administration)

3rd Respondent

and

Sarrai Group Limited

Interested Party

and

KHAMINWA & KHAMINWA ADVOCATES

Creditor

and

West Kenya Sugar Company Limited

Interested Party

and

Wekesa & Simiyu Advocates

Creditor

and

Kereto Marima

Interested Party

Mumias Sugar 2021 Limited

Interested Party

and

Vartox Resources Inc

Creditor

Ruling

1. Jackline Chepkemoi Kimeto, an Advocate of the High Court of Kenya practicing in the name and Style of Kimeto & Associates Advocates, being the Petitioner in the case before this Honourable Court, on September 1, 2023, filed a Notice of Withdrawal of Suit dated September 1, 2023 under order 25 rule 1 of the Civil Procedure Rules, 2010. Simultaneously, the Petitioner filed a similar notice of withdrawal of suit in Petition No. E007 of 2019- (Kimeto & Associates Advocates v Kenya Commercial Bank & 2 others). Mutatis mutandis the orders emanating from this application will equally apply to the suit filed as Petition Number E007 of 2019.

2. On September 2, 2023 the said Petitioner sent a letter to the Deputy Registrar of the Court seeking to cancel the said Notice of Withdrawal of Suit. When the matter was placed before the presiding Judge of the Commercial and Tax Division of the High Court for directions, the Petitioner was directed to formally move the court by way of an application as the court could not make any substantive orders on the basis of a letter.

3. On 11th September 2023, the Petitioner filed the present application seeking various orders which included a prayer under item 2 of the said Notice for “That the Notice of Withdrawal filed by the Petitioner on September 1, 2023 in IP E004 of 2019 be and is hereby set aside”. The said Notice of Motion, which was filed pursuant to sections 532(3), 522, 523(a), 524, 591, 592, and 593 of the Insolvency Act; section 2(b) and (c) of the Second Schedule to the Insolvency Act No. 18 of 2015; Regulation 10 of the Insolvency Regulations, 2016; order 40 rule 1 and order 51 rule of the Civil Procedure Rules,2010.

4. When parties first appeared before this Court for directions on the said Application, the Court directed that it would first deal with the issue of the effect of the Notice of Withdrawal of suit and the prayer for reinstatement of the Petition before considering any other prayers sought therein. All parties participating in the said Petition whether in support of the Application seeking to reinstate the suit or those opposed to the same, were directed to file their respective responses and written submissions for consideration by the court.

5. Subsequent to the directions of the court, Petitioner did not file any written submissions. However, the Court notes that responses were received from the 1st & 2nd Respondents and the 1st Interested Party respectively. The 1st and 2nd Respondents and the 1st Interested Party also filed their written submissions which I have carefully considered at length.

6. In considering the application before me I have asked myself whether a court has jurisdiction to determine an application where a suit has already been formally withdrawn by the party that initially filed the suit, like in the present case. Jurisdiction as we all know it, is the power of a court to make judicial determination and pronouncements of a matter properly before it. Black’s Law Dictionary defines the term Jurisdiction as follows:-“The power and authority constitutionally conferred upon (or constitutionally recognized as existing in) a court or judge to pronounce the sentence of the law, or to award the remedies provided by law, upon a state of facts, proved or admitted, referred to the tribunal for decision, and authorized by law to be the subject of investigation or action by that tribunal, and in favor of or against persons (or a res) who present themselves, or who are brought, before the court in some manner sanctioned by law as proper and sufficient.”

7. Flowing from the above definition, jurisdiction of the High Court to determine matters before it is derived from article 165(3)(a) of the Constitution of Kenya that provides as follows; “Subject to clause (5), the High Court shall have— unlimited original jurisdiction in criminal and civil matters; The matter before this court is a civil matter and therefore falls within the confines of the Civil Procedure Act and Rules. Order 25 of the Civil Procedure Rules has made provisions for parties to withdraw suits filed before courts. The said order 25 provides as follows:-“At any time before the setting down of a suit for hearing the Plaintiff may by a notice in writing, which shall be served upon all the parties, wholly discontinue his suit against all or any of the defendants or may withdraw any part of his claim, and such discontinuance shall not be a defence to any subsequent suits.”

8. However, it is important to note that the said order 25 of the Civil Procedure Rules is silent on the mode of reinstating a suit once the Plaintiff or the Petitioner (as in the case before me) files a Notice of Withdrawal of Suit. The question as to whether or not a party can reinstate a suit pursuant to a filing of a Notice of withdrawal of suit has been considered in various decisions of the court. In the case of Charles Kiptabei Birech v Paul Waweru Mbugua &another (2021) eKLR, the Court had this to say:-“of importance to note is that the Rules that provide for the discontinuance or withdrawal of a suit do not provide for the revocation of withdrawal notice or the setting aside of the suit. And once a suit is discontinued in whichever manner howsoever, it ceases to exist. A party cannot breathe life into it by whichever means, not even a consent setting aside the orders of withdrawal. The existence of a suit can be equated to the existence of a light bulb; it only exists if there is an electric current and the gadget known as “bulb”. Once the either the light or the bulb cease to be in contact, the light goes out and in its place is darkness. The only way to get light again is to supply current to it. The light that comes into existence again it not the continuation of the one that went out. It is new.”

9. Similarly the above reasoning was obtaining in the case of George Mwangi Kinuthia v The Attorney General(2019) eKLR where the High Court held as follows:-“it follows a party who withdraws his suit cannot seek to reinstate the same but a party withdrawing a suit has the option of instituting a fresh action as per provisions of order 25 rule 4 of the Civil Procedure Rules which is similar to rule 27 of the Constitution of Kenya (Protection of Rights and Freedoms) Practice and Procedure Rules 2013. The Order and Rule referred herein above do not envisage a litigant who has withdrawn the suit to seek reinstatement; as a withdrawal means there is no suit pending anymore. In view of the above it is my view once a suit is withdrawn there is nothing that can be sought to be reinstated by the court.”

10. To echo the words of Justice Mativo in Pricilla Nyambura Njue v Geochem Middle East Ltd: Kenya BureauofStandards (interested Party) (2021) eKLR:-“withdrawal of a suit is in itself an end. The right of a Plaintiff to withdraw his suit is not a divine right but a right expressly conferred upon him by order 25 and no right is similarly conferred upon him to revoke or rescind the withdrawal. So long as he remains the Plaintiff, he may do any act which he may do in that capacity; he cannot after withdrawal of the suit resulting in loss of capacity, do an act which can be done only in that capacity. Put differently, there is no provision conferring the right to revoke the withdrawal and there is no justification for saying that the right to withdraw includes itself a right to revoke the withdrawal….the withdrawal took effect immediately the court permitted it and as observed earlier, order 25 has no provisions permitting reinstatement of a suit once the withdrawal has taken effect.”

11. The above cited decisions emanating from the courts lead to a conclusion that the only remedy available to a party who changes their mind upon filing and serving a Notice of Withdrawal of Suit not to be found in an application to reinstate the withdrawn suit but to file a fresh suit to pursue their abandoned claim or suit. Because Courts can only properly determine matters brought before them by parties to a suit, a Notice of Withdrawal of Suit effectively takes away the court’s jurisdiction or power to determine anything else filed thereafter as there is no foundation or basis upon which the same can be considered. This inability to consider anything else includes the court’s inability to consider and determine an application to reinstate the said hitherto withdrawn suit. An application to reinstate a suit after the same has been withdrawn as provided under order 25 of the Civil Procedure Rules, the same cannot therefore be sustained.

12. In the case before me, the Petitioner filed a Notice of Withdrawal of Suit to this petition and the Petition in E007 of 2019 on September 1, 2023 and immediately served the same upon all parties to the suit. Effectively upon the service of the said notice, the petition herein stood withdrawn. All orders and directions pertaining in the said petition were therefore rendered irrelevant and of no legal effect by operation of order 25 rule 1 of the Civil Procedure Rules. This court is persuaded that the prayer to reinstate the petition herein is therefore unsustainable as there is no corresponding provision or Order under the Civil Procedure Rules on how the same can be reinstated. The said prayer No. 2 in the present application therefore fails.

13. Consequently, I therefore find and hold that the application of September 11, 2023 cannot be sustained. The same is hereby struck out in its entirety. Costs follow the event. The Court having found that it lacks power or jurisdiction to make any orders herein and also taking into consideration the number of parties this suit attracted since it was filed, the court finds that it is only appropriate if all parties in this suit bear their own costs of this application. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF NOVEMBER 2023………………………………..J. W. W. MONG’AREJUDGEIn the presence of:-Ms. Jackline Kimeto for the PetitionerMr. Lawson Ondieki and Mr. Hassan Nura for the 1st and 2nd Respondent.Mr. Shikanda holding brief for Mr. Osundwa for the for the 3rd Respondent.Mr. Edmond Wesonga for Wekesa and Simiyu Advocates, a Creditor.Mr. Nyachonga for Omaera Pharmaceuticals, a Creditor.Mr. Amalemba for the 1st Interested Party.Amos – Court Assistant