[2022] KEHC 11867 (KLR)
The court found that the defendants failed to prosecute their preliminary objection by not filing submissions as directed. Furthermore, there was no evidence on record to demonstrate the existence of the alleged parallel suit. The court held that it is not its duty to search for such evidence on behalf of the...
Source-derived case information.
- Citation
- [2022] KEHC 11867 (KLR)
- Parties
- Plaintiff: Medlinc Africa Limited; Defendant: Wilkins Chagadwa Lovegwa; Defendant: Collins Lanogwa; Defendant: Elizabeth Wanjiru
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit E680 of 2021
- Procedural Posture
- Civil Suit / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed with costs
- Judges
- A Mabeya
- Legal Topics
- Preliminary Objection, Section 6 Civil Procedure Act, Pendency of Suit, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Medlinc Africa Limited
Plaintiff
Wilkins Chagadwa Lovegwa
Defendant
Collins Lanogwa
Defendant
Elizabeth Wanjiru
Defendant
Procedural Posture
Civil Suit / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit and application offend section 6 of the Civil Procedure Act due to the existence of another suit involving the same parties and subject matter.
- 2 Whether the preliminary objection is merited in the absence of evidence of the alleged pending suit.
Ratio Decidendi
The court found that the defendants failed to prosecute their preliminary objection by not filing submissions as directed. Furthermore, there was no evidence on record to demonstrate the existence of the alleged parallel suit. The court held that it is not its duty to search for such evidence on behalf of the parties. Consequently, the preliminary objection was found to be without merit and was dismissed with costs to the plaintiff.
Court Disposition
preliminary objection dismissed with costs
Orders
- The preliminary objection dated 23/7/2021 is dismissed with costs to the plaintiff.
Full Case Text
Judgment text and source record
28 paragraphs
Medlinc Africa Limited v Lovegwa & 2 others (Civil Suit E680 of 2021) [2022] KEHC 11867 (KLR) (Commercial and Tax) (12 August 2022) (Ruling)
Neutral citation: [2022] KEHC 11867 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)
Commercial and Tax
Civil Suit E680 of 2021
A Mabeya, J
August 12, 2022
Between
Medlinc Africa Limited
Plaintiff
and
Wilkins Chagadwa Lovegwa
1st Defendant
Collins Lanogwa
2nd Defendant
Elizabeth Wanjiru
3rd Defendant
Ruling
1. The defendants filed a Preliminary Objection dated 23/7/2021 which the court is tasked with determining in this ruling.
2. The objection raised points of law against the suit and the application dated 9/7/2021 filed by the plaintiff.
3. It was premised on the grounds that the entire suit and aforementioned application offended the provisions of section 6 of the Civil Procedure Act as there exists Milimani High Court Commercial Suit Number Hccomm/E138/2021 involving the same parties and counsels herein and involving the same subject matter as in the present suit.
4. That the orders issued by the Hon Muigai on the 15/7/2021 partially reversed the orders of this Court issued on 29/3/2021, allowing the 1st to 3rd defendants to participate in the affairs of the plaintiff herein.
5. The Court directed the defendants to file submissions in support of the objection 17/8/2021. However, as at the time of writing this ruling, there were no submissions on record.
6. Firstly, by failing to file submissions, the defendant failed to prosecute the said objection. Secondly, there is nothing on record to show the existence of the alleged suit. It is not for the Court to go out of its way to look for such evidence.
7. In the premises, I find the objection to be without merit and dismiss the same with costs.
It is so ordered.
DATED AND DELIVERED AT NAIROBI THIS 12TH DAY OF AUGUST, 2022. A. MABEYA, FCIArbJUDGE