[2024] KEHC 10325 (KLR)
The court held that the application by the Defendant was essentially seeking a review or an appeal of the court's earlier orders granting leave to amend the Plaint and enjoin the Administrator as a Defendant. The proper procedure for challenging such orders is to file an appeal to the Court of Appeal, not to file a...
Source-derived case information.
- Citation
- [2024] KEHC 10325 (KLR)
- Parties
- Plaintiff: Kitui Flour Mills Ltd; Defendant: New Generation Self Service Stores Ltd; Defendant: Madhav Sudhir Bhandari (Sued as the Administrator New Generation Self Service Stores Ltd)
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Commercial Suit E009 of 2022
- Procedural Posture
- Commercial Suit / Ruling on Interlocutory Application to Disallow Amendments and Stay Proceedings
- Outcome
- application dismissed with costs to the plaintiff/respondent
- Judges
- F Wangari
- Legal Topics
- Insolvency Administration, Leave to Amend Pleadings, Joinder of Parties, Stay of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kitui Flour Mills Ltd
Plaintiff
New Generation Self Service Stores Ltd
Defendant
Madhav Sudhir Bhandari (Sued as the Administrator New Generation Self Service Stores Ltd)
Defendant
Procedural Posture
Commercial Suit / Ruling on Interlocutory Application to Disallow Amendments and Stay Proceedings
Legal Issues
- 1 Whether the amendments to the Plaint effected on 29th August 2023 should be disallowed.
- 2 Whether the suit against the 1st Defendant should be stayed pending leave from the Insolvency Court.
- 3 Whether the Administrator can be properly enjoined as a Defendant without leave from the Insolvency Court.
Ratio Decidendi
The court held that the application by the Defendant was essentially seeking a review or an appeal of the court's earlier orders granting leave to amend the Plaint and enjoin the Administrator as a Defendant. The proper procedure for challenging such orders is to file an appeal to the Court of Appeal, not to file a fresh application before the same court. The court found that it had already granted leave for the amendments and joinder, and that the Defendant's dissatisfaction should have been addressed through the appellate process. As such, the application lacked merit and was dismissed with costs awarded to the Plaintiff.
Court Disposition
application dismissed with costs to the plaintiff/respondent
Orders
- The Notice of Motion dated 9/10/2023 is dismissed for lack of merit.
- Costs are awarded to the Plaintiff/Respondent.
Full Case Text
Judgment text and source record
30 paragraphs
Kitui Flour Mills Ltd v New Generation Self Service Stores Ltd & another (Commercial Suit E009 of 2022) [2024] KEHC 10325 (KLR) (22 April 2024) (Ruling)
Neutral citation: [2024] KEHC 10325 (KLR)
Republic of Kenya
In the High Court at Mombasa
Commercial Suit E009 of 2022
F Wangari, J
April 22, 2024
Between
Kitui Flour Mills Ltd
Plaintiff
and
New Generation Self Service Stores Ltd
1st Defendant
Madhav Sudhir Bhandarid (Sued as the Administrators New Generation Self Services Stores Ltd)
2nd Defendant
Ruling
1. The Defendant filed an application dated 9/10/2022 seeking the following ordersa.The amendments to the Plaint, effected on 29th August 2023, be disallowed in toto.b.The suit against the 1st Defendant be stayed sine die until such time as leave of the High Court, sitting as an Insolvency Court is obtained.c.The costs of this application be borne by the Plaintiff.
2. The application was based on the grounds that the 1st Defendant was under Administration by NCBA Bank and the 2nd Defendant being the Administrator acquires no personal liability for the acts or omissions of the 1st Defendant. The suit is therefore not sustainable in law as leave ought to be granted in the related pending suit in Nairobi Insolvency Notice No. E047 of 2022.
3. The supporting affidavit was sworn by the Administrator Madhav Sudhir Bhandari deponing the contents of the application.
4. The Plaintiff/ Respondent filed a Replying Affidavit dated 22/11/2023 sworn by the Anwar Ahmed Abeid, a Manager with the Plaintiff company, deponed that the Respondent via a Notice of Motion dated 4/7/2022 sought leave to amend the Plaint and enjoin the Administrator as the 2nd Defendant. Leave was granted as per the ruling of this court dated 1/8/2023.
5. Parties were directed to file their respective submissions and they both complied. The Defendant/ Applicant filed the submissions dated 10/1/2024 while the Plaintiff/ Respondent filed their submissions dated 13/2/2024.
6. The Applicant submits that leave to have the Administrator be enjoined as a Defendant ought to be granted in an Insolvency cause. In this matter, there is a pending insolvency cause which is still pending determination before the Nairobi High Court.
7. On the other hand, the Respondent submits that leave had already been granted by this court on 1/8/2023 and the amended Plaint was properly before court.
8. I have perused through the ruling of this court dated 1/8/2023 which gave leave to have the Plaintiff amend its Plaint and enjoin the then interested party (now 2nd Defendant) as a party to the suit.
9. This application seeks to have the amendments to the plaint be denied in toto and these proceedings be stayed pending determination of the insolvency suit before the Nairobi High Court.
10. What the Defendant/ Applicant is seeking is to have this court review its orders dated 1/8/2023 or this court to sit on appeal against its own orders. If the Applicant was dissatisfied with the orders of this court, all that was left of them is to file an appeal against the said ruling instead of filing this application at hand.
11. Article 164 (3) of the Constitution of Kenya, 2010 provides as follows;3. The Court of Appeal has jurisdiction to hear appeals from-a.The High Court; andb.Any other court or tribunal as prescribed by an Act of Parliament
12. The Applicant if dissatisfied with the court orders dated 1/8/2023, ought to have filed an appeal against the said ruling. The application therefore has got no merits and costs are awarded to the Plaintiff/ Respondent.
Determination 13. From the above, the following orders are hereby issued;a.The Notice of Motion dated 9/10/2023 lacks merit and is hereby dismissed.b.Costs awarded to the Plaintiff/ Respondent.
DATED, SIGNED AND DELIVERED AT MOMBASA ON THIS 22ND DAY OF APRIL, 2024. .......................................F. WANGARIJUDGEIn the presence of;Kongere Advocate for Defendant/ ApplicantM/S Juma Advocate for Plaintiff/ RespondentBarile, Court Assistant