[2023] KEHC 20126 (KLR)
The application was struck out as fatally and incurably defective for two principal reasons: first, it failed to disclose the identity of the applicant(s), making it impossible for the court to grant or enforce orders; second, no leave had been sought from the insolvency court despite the existence of an appointed...
Source-derived case information.
- Citation
- [2023] KEHC 20126 (KLR)
- Parties
- Plaintiff: Mvita Oils Limited; Defendant: New Generation Self Service Store Limited; Appellant: Madhav Sudhir Bhandari
- Court
- High Court
- Court Station
- High Court at Voi
- Jurisdiction
- Kenya
- Case Number
- Civil Suit E001 of 2022
- Procedural Posture
- Civil Suit / Ruling on Notice of Motion for Injunctive Orders and Compliance With Insolvency Act
- Outcome
- application struck out as fatally defective; costs to defendant; interim orders vacated
- Judges
- GMA Dulu
- Legal Topics
- Striking Out Application, Defective Pleadings, Insolvency Proceedings, Leave of Court Requirement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mvita Oils Limited
Plaintiff
New Generation Self Service Store Limited
Defendant
Madhav Sudhir Bhandari
Appellant
Procedural Posture
Civil Suit / Ruling on Notice of Motion for Injunctive Orders and Compliance With Insolvency Act
Legal Issues
- 1 Whether the application is fatally defective for failure to disclose the identity of the applicant.
- 2 Whether the application is incompetent for lack of leave from the insolvency court where an administrator is appointed.
- 3 Whether the interim orders previously issued were a nullity for want of jurisdiction.
Ratio Decidendi
The application was struck out as fatally and incurably defective for two principal reasons: first, it failed to disclose the identity of the applicant(s), making it impossible for the court to grant or enforce orders; second, no leave had been sought from the insolvency court despite the existence of an appointed administrator, as required by a prior ruling in a related matter. The court further held that the interim orders previously issued were not a nullity, as the court had jurisdiction to issue them, but those orders were vacated upon striking out the application.
Court Disposition
application struck out as fatally defective; costs to defendant; interim orders vacated
Orders
- The application dated 10th May 2023 is struck out as fatally and incurably defective.
- Costs awarded to the defendant.
Full Case Text
Judgment text and source record
30 paragraphs
Mvita Oils Limited v New Generation Self Service Store Limited; Bhandari (Intended Interested Party) (Civil Suit E001 of 2022) [2023] KEHC 20126 (KLR) (12 July 2023) (Ruling)
Neutral citation: [2023] KEHC 20126 (KLR)
Republic of Kenya
In the High Court at Voi
Civil Suit E001 of 2022
GMA Dulu, J
July 12, 2023
Between
Mvita Oils Limited
Plaintiff
and
New Generation Self Service Store Limited
Defendant
and
Madhav Sudhir Bhandari
Intended Interested Party
Ruling
1. I see a number of applications in this file. However, this ruling relates to the application (Notice of Motion) dated 10th May 2023 filed by Mulago & Company Advocates for an applicant who is not disclosed in the body of the application.
2. The application was filed with a supporting affidavit sworn on 10th May 2023 by Mahboob Hussein Virji described as director of both applicant companies, whose identity of the parties who have come to court, is also not disclosed in the said affidavit.
3. The application seeks injunctive orders, as well as remittance of proceeds of sale of the assets and the defendant to be compelled to comply with the provisions of the Insolvency Act, 2015.
4. The application is opposed by the defendant through Grounds of Opposition filed by Muriu Mungai & Company Advocates, and dated 15th May 2023 in which it was contended that no leave had been sought from the insolvency court, and that the orders issued on 11th May 2023 were a nullity as they were issued without jurisdiction.
5. The application was canvassed through written submissions. In this regard, I have perused and considered the submissions filed on both counsel for the parties.
6. Having considered the application, documents filed, and all arguments of the parties counsel, I will first of all state that the interim orders issued by this court on 11th May 2023 are not a nullity as suggested by the defendants, as this court has jurisdiction to issue interim orders, and once issued the same stand effective until they are either set aside or when they expire. Thus this court had jurisdiction to issue those interim orders.
7. This application will however not succeed, as in my view it is not competent and is incurably defective.
8. The first reason is that the application is fatally defective in form in the sense that it does not specifically bring out the identity of or clearly state the names of the applicant or applicants, and the relations of the applicant with the person who swore the supporting affidavit. Thus if orders are issued by the court in favour of or against the so called applicants, it will not be possible to enforce the said orders either by or against the anonymous applicant or applicants.
9. As courts do not act in vain, this application cannot thus stand as it is clearly fatally defective for non-disclosure of the litigant, and is for striking out.
10. The second reason why this application cannot stand is that, I can see herein filed, a ruling delivered on 30th March 2023 in Mombasa High Court Commercial Suit No. E034 of 2022, in which the court stated that applications in relation to this matter, where there is an appointed administrator, can only be filed with leave of the court.
11. Having not been referred to any such leave granted by the court, thus this application has no ground on which to stand. For that reason also, the application is for striking out.
12. I thus find that the application is fatally and incurably defective, and strike it out, with costs to the defendant. Any interim orders granted herein, are hereby vacated.
DATED, SIGNED AND DELIVERED THIS 12TH DAY OF JULY 2023 AT VOI IN OPEN COURT VIRTUALLY.GEORGE DULUJUDGEIn the presence of:-Mr. Kangere for the defendantMr. Otolo court assistant