[1981] KECA 23 (KLR)
The Court of Appeal held that the High Court erred by failing to resolve the serious conflict of facts between the parties through oral evidence. Since it was not possible to determine which version of events was correct based solely on affidavits, and both counsel agreed that this difficulty existed, the proper...
Source-derived case information.
- Citation
- [1981] KECA 23 (KLR)
- Parties
- Appellant: Musa; Respondent: Life Agencies International (Kenya) Ltd
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 13 of 1981
- Procedural Posture
- Civil Appeal / Appeal From High Court Decision Refusing to Wind Up Company
- Outcome
- Petition remitted for hearing de novo before another High Court judge; appellant awarded half costs of the appeal.
- Legal Topics
- Company Winding Up, Shareholder Disputes, Deadlock Resolution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Musa
Appellant
Life Agencies International (Kenya) Ltd
Respondent
Procedural Posture
Civil Appeal / Appeal From High Court Decision Refusing to Wind Up Company
Legal Issues
- 1 Whether the High Court erred in refusing to wind up the company in light of a deadlock between the only two shareholders and directors.
- 2 Whether the High Court failed to resolve material conflicts of fact by not hearing oral evidence.
Ratio Decidendi
The Court of Appeal held that the High Court erred by failing to resolve the serious conflict of facts between the parties through oral evidence. Since it was not possible to determine which version of events was correct based solely on affidavits, and both counsel agreed that this difficulty existed, the proper course was to remit the petition for a fresh hearing before another judge of the High Court. The appeal was thus allowed to the extent of ordering a rehearing, with costs of the fresh hearing at the discretion of the new judge and the appellant awarded half the costs of the appeal.
Court Disposition
Petition remitted for hearing de novo before another High Court judge; appellant awarded half costs of the appeal.
Orders
- The petition is remitted for hearing de novo by another judge of the High Court.
- Costs of the fresh hearing to be in the discretion of the High Court judge.
Full Case Text
Judgment text and source record
28 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
( Coram:Madan, Miller & Potter JJA )
CIVIL APPEAL NO. 13 OF 1981
BETWEEN
MUSA..............................................................................................APPELLANT
AND
LIFE AGENCIES INTERNATIONAL (KENYA) LTD..................RESPONDENT
JUDGMENT
Madan JAThis is an appeal from a decision of Masime J who refused to make an order on the appellant’s petition compulsorily to wind up the company.
Three affidavits were filed, one by the petitioner in support of the petition, a replying affidavit by the only other director in the company, and a further affidavit by the petitioner.
The company was incorporated by the petitioner and the other director who were the only two directors and shareholders of the company each holding one share. Serious disputes occurred leading to a deadlock between them which, according to the petitioner, made it impossible to carry on the business of the company jointly.
The other director deponed that a meeting was held on a certain date when the petitioner was present, two new directors were appointed by consent of the parties. The petitioner denied all this in his further affidavit, his version being that such a meeting was never held. There arose a serious conflict of facts requiring determination of which party’s version was the correct one. The learned judge proceeded on the basis that such a meeting took place. He did not hear any evidence to resolve the conflict in the usual manner of first evidence-in-chief, then cross-examination, and if necessary re-examination. We find ourselves in this difficulty that we are unable to say with reasonable satisfaction of mind which set of facts is the correct one. Counsel agree that this difficulty exists in this case. Counsel also agreeing, we remit the petition for hearing de novo by another judge of the High Court, the costs of the fresh hearing to be in his discretion.
This agreed solution was reached at an early stage of hearing of the appeal before us. Mr Gautama had to come to this court. In the circumstances we give the appellant half costs of the appeal.
As Millerand Potter JJAagree, it is so ordered.
Dated and Delivered at Nairobi this 16th day of December 1981.
C.B.MADAN
..................................
JUDGE OF APPEAL
C.H.E.MILLER
..................................
JUDGE OF APPEAL
K.D.POTTER
..................................
JUDGE OF APPEAL
I certify that this is a true copy of
the original.
DEPUTY REGISTRAR