[2019] KEHC 4025 (KLR)
The court found that, since the plaintiff had vacated the premises and the service accounts had been terminated, there was no longer any threat of disconnection or ongoing dispute between the parties. The original cause of action—preventing the defendant from recovering a sum by disconnecting supply—no longer...
Source-derived case information.
- Citation
- [2019] KEHC 4025 (KLR)
- Parties
- Plaintiff: Overdrive Consultants Limited; Defendant: Kenya Power & Lighting Co. Ltd
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 87 of 2009
- Procedural Posture
- Civil Suit / Ruling
- Outcome
- Plaintiff's suit struck out. Each party to bear own costs.
- Judges
- CA Otieno
- Legal Topics
- Striking Out Suit, Cause of Action, Statute Barred Claims
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Overdrive Consultants Limited
Plaintiff
Kenya Power & Lighting Co. Ltd
Defendant
Procedural Posture
Civil Suit / Ruling
Legal Issues
- 1 Whether there exists a real dispute for the court to determine after the plaintiff vacated the premises and accounts were terminated.
- 2 Whether the plaintiff's suit discloses a cause of action in the absence of a counterclaim by the defendant.
- 3 Whether the claim has become statute barred.
Ratio Decidendi
The court found that, since the plaintiff had vacated the premises and the service accounts had been terminated, there was no longer any threat of disconnection or ongoing dispute between the parties. The original cause of action—preventing the defendant from recovering a sum by disconnecting supply—no longer existed. The defendant had not filed a counterclaim, and the claim had become statute barred. Therefore, there was no practical or efficacious purpose in granting the relief sought, and the suit disclosed no cause of action. The court accordingly struck out the plaintiff's suit.
Court Disposition
Plaintiff's suit struck out. Each party to bear own costs.
Orders
- The plaintiff's suit against the defendant is struck out.
- Each party shall bear its own costs.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL SUIT NO. 87 OF 2009
OVERDRIVE CONSULTANTS LIMITED............................PLAINTIFF
VERSUS
KENYA POWER & LIGHTING CO. LTD.........................DEFENDANT
R U L I N G
1. As the plaintiff counsel concedes that only Prayer (1) pends after the plaintiff vacated the premises and the accounts terminated, the issue the court has considered in determining the application is whether there exists a real dispute for it to determine. In other words, what would be the practical and efficacious effect for an order in terms of prayer (i).
2. I do note for these pleadings that the suit was to stop the defendant for seeking to recover the same of Kshs.729,760/= by disconnecting the plaintiffs supply accounts. That was the ultimate goal to be achieved by a declaration that the sum were not due or payable.
3. Now that the service accounts have been terminated and no threat exists towards disconnections, there is no dispute for the court to determine hence there is no cause of action revealed by the plaint. This may have been different if the defendant had mounted a counterclaim, which it did not. The effect is that the said claim cannot be pursued meaningfully now by a suit or indeed any other way for it having become statute barred.
4. On that basis, I do accede to the application and order that the plaintiffs suit against the defendant be struck out.
5. On costs, it is noted that the dispute between the parties was dissipated when the statutory relationship between the two as a licensee and consumer of electric power was terminated. Prayer (1) would have remained live had the defendant filed a counterclaim but it did not thus participating in dissipation of the dispute between the parties.
6. For that reason, I order that each party bears own costs.
Dated and deliveredat Mombasa this 25th day of September 2019.
P.J.O. OTIENO
JUDGE