[2016] KEHC 3745 (KLR)
The court found that the applicants had demonstrated sufficient cause for the extension of time, as the quantification of the counterclaim required a report from Ernst and Young LLP, which was not yet ready. The court noted that the application was unopposed and that granting the extension would not prejudice the...
Source-derived case information.
- Citation
- [2016] KEHC 3745 (KLR)
- Parties
- Plaintiff: Maxam Limited; Plaintiff: Modern Lane Limited; Plaintiff: Olepasu Tanzania Limited; Defendant: Heineken E.A. Import Co. Ltd; Defendant: Heineken Brouwerijen B. V; Defendant: Heineken International B. V
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 29 of 2016
- Procedural Posture
- Civil Case / Ruling on Application for Extension of Time to File Amended Defence and Counterclaim
- Outcome
- application allowed
- Legal Topics
- Extension of Time, Amendment of Pleadings, Counterclaim Filing, Procedural Fairness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Maxam Limited
Plaintiff
Modern Lane Limited
Plaintiff
Olepasu Tanzania Limited
Plaintiff
Heineken E.A. Import Co. Ltd
Defendant
Heineken Brouwerijen B. V
Defendant
Heineken International B. V
Defendant
Procedural Posture
Civil Case / Ruling on Application for Extension of Time to File Amended Defence and Counterclaim
Legal Issues
- 1 Whether the applicants should be granted an extension of time to file an amended statement of defence and counterclaim.
- 2 Whether the applicants have demonstrated sufficient cause for the enlargement of time.
- 3 Whether the respondents will suffer prejudice if the orders sought are granted.
Ratio Decidendi
The court found that the applicants had demonstrated sufficient cause for the extension of time, as the quantification of the counterclaim required a report from Ernst and Young LLP, which was not yet ready. The court noted that the application was unopposed and that granting the extension would not prejudice the respondents, who would have the opportunity to respond to the amended pleadings. The court exercised its discretion to allow the application, finding that doing so would enable the applicants to present all necessary evidence and facilitate a fair and just determination of the matter.
Court Disposition
application allowed
Orders
- Time for filing an amended statement of defence and counterclaim is enlarged by 30 days from the date of the ruling.
- Applicants to file and serve the amended statement of defence and counterclaim within 30 days.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL & ADMIRALTY DIVISION
CIVIL CASE NO. 29 OF 2016
MAXAM LIIMITED ............................................ 1ST PLAINTIFF/APPLICANT
MODERN LANE LIMITED ................................ 2ND PLAINTIFF/APPLICANT
OLEPASU TANZANIA LIMITED ...................... 3RD PLAINTIFF/APPLICANT
VERSUS
HEINEKEN E.A. IMPORT CO. LTD .............. 1ST DEFENDANT/RESPONDENT
HEINEKEN BROUWERIJEN B. V .................. 2ND DEFENDANT/RESPONDENT
HEINEKEN INTERNATIONAL B. V .............. 3RD DEFENDANT/RESPONDENT
RULING
The application herein is a Notice of Motion dated 3rd June 2016. The same is brought under section 1A, 1B, 3A and 95 of the Civil Procedure Act, Chapter 21 of the Laws of Kenya, Order 8 Rule 6, and Order 51 Civil Procedure Rule 2010 and all the enabling provision of the law.
The application is seeking for order that:
Pending the hearing and determination of this application the court do suspend the time required of the Applicants to file their amended statement of Defence and counter claim.
That the court do enlarge time for filing an Amended Statement of Defence and counter claim.
That the court do give a time of 30 days within which the Amended Statement of Defence and counter claim is to be filed and served.
The costs of the application be provided for.
The application is based on the grounds set therein, and is supported by an affidavit sworn by Austin L. Ayisi. It was filed in court under certificate of urgency on 3rd June 2016. Upon hearing the said application the court ordered that it be served for inter-parties hearing on 6th June 2016. On 6th June 2016, the Applicants were present in court, but the Respondents were not represented. A perusal of the court file revealed that the Respondents were served with the Application and hearing notice on the 3rd day of June 2016, for inter parties hearing on 6th June 2016. The affidavit of service was filed in court on 6th June 2016, to that effect. It indicated that the application and hearing notice were received and acknowledged by the firm of Nyachoti & Co. Advocates, who are on record for the Respondents.
The application was then heard ex parte and as unopposed. In his submissions, Mr. Aisi who appeared for the Applicant told the court that the Defendant’s counter claim is a liquidated claim and they require a report to quantify the loss of profits and business opportunities. That same is being prepared by the firm of Ernst and Young LLP, and though underway it is not ready. He told the court that, the said firm will require a further 30 days to finalise the same. That he informed the Respondents’ counsel of the same vide a letter dated 2nd June 2016. He submitted that the grant of prayers sought will not cause any prejudice to the Respondents as the court can still grant the Respondents leave to file a reply to the amended defence and a defence to the counter-claim.
I have now considered the application, the prayers sought therein, the grounds and affidavit in support. In a nutshell the Applicant’s avers that in order to quantify the counter-claim, they require a report to support the quantum for loss of profits and loss of business opportunities arising from the exclusive distribution between the Plaintiffs and the Defendants. That the 21 days they were granted to file a defence and counter claim expired on 3rd June 2016. They submit that they will suffer immense prejudice if the application is not allowed as prayed.
In conclusion I find that the application herein has merit in that it will allow the Applicant to avail all the required documents and/or evidence to enable the court arrive at a fair and just decision in this matter. I also note that the application is not opposed and, the Respondents will not suffer any prejudice if the application is allowed as the Plaintiff will be at liberty to reply to the amended defence and counterclaim.
I therefore allow the application in terms of prayers 2, 3 and 4 accordingly. The costs thereof will be in the cause.
Orders accordingly.
G. NZIOKA
Read in open court and dated on this 16th day of June 2016.
G. L. NZIOKA
JUDGE
Delivered before
............................... for the Plaintiff
............................. for the Defendants
Teresia C/Clerk