[2015] KEHC 3146 (KLR)
The court found that, although the explanation for the plaintiff's counsel's absence was not entirely satisfactory, the seriousness of the issues raised—particularly the allegations of fraud and the potential sale of the property—warranted reinstatement of the dismissed application. The court emphasized that the...
Source-derived case information.
- Citation
- [2015] KEHC 3146 (KLR)
- Parties
- Plaintiff: Raham tulah Rahami Ahmed (suing as the administrator ad litem of the estate of Zubeida Moormohamed Khediwalla); Defendant: Wilberforce Njenga; Defendant: African Banking Corporation Limited; Defendant: Registrar of Titles Mombasa; Defendant: The Attorney General
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 45 of 2015
- Procedural Posture
- Civil Case / Ruling on Application for Reinstatement of Dismissed Interlocutory Motion
- Outcome
- Application for reinstatement allowed; interlocutory application and interim orders reinstated; costs of reinstatement application to 2nd defendant.
- Judges
- MM Kasango
- Legal Topics
- Interlocutory Injunctions, Reinstatement of Application, Statutory Power of Sale, Fraudulent Charge, Non Attendance, Overriding Objective
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Raham tulah Rahami Ahmed (suing as the administrator ad litem of the estate of Zubeida Moormohamed Khediwalla)
Plaintiff
Wilberforce Njenga
Defendant
African Banking Corporation Limited
Defendant
Registrar of Titles Mombasa
Defendant
The Attorney General
Defendant
Procedural Posture
Civil Case / Ruling on Application for Reinstatement of Dismissed Interlocutory Motion
Legal Issues
- 1 Whether the plaintiff's application for interlocutory injunction, previously dismissed for non-attendance, should be reinstated.
- 2 Whether the absence of the plaintiff's counsel constituted sufficient cause for reinstatement.
- 3 Whether the interests of justice require the matter to be heard on its merits given the allegations of fraud.
Ratio Decidendi
The court found that, although the explanation for the plaintiff's counsel's absence was not entirely satisfactory, the seriousness of the issues raised—particularly the allegations of fraud and the potential sale of the property—warranted reinstatement of the dismissed application. The court emphasized that the interests of justice and the overriding objective of the Civil Procedure Act would best be served by allowing the matter to proceed on its merits. Accordingly, the Notice of Motion dated 23rd March 2015 and the interim orders were reinstated, with costs of the reinstatement application awarded to the 2nd defendant.
Court Disposition
Application for reinstatement allowed; interlocutory application and interim orders reinstated; costs of reinstatement application to 2nd defendant.
Orders
- The Notice of Motion dated 23rd March 2015 is hereby reinstated.
- The interim orders issued on 30th March 2015 are hereby reinstated.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL CASE NO. 45 OF 2015
RAHAMTULAH RAHAMI AHMED(SUING AS THE ADMINISTRATOR AD LITEM
OF THE ESTATE OF ZUBEIDA MOORMOHAMED KHEDIWALLA…… PLAINTIFF
V E R S U S
WILBERFORCE NJENGAAFRICAN BANKING CORPORATION LIMITED
REGISTRAR OF TITLES MOMBASA
THE ATTORNEY GENERAL……….……........…………..……DEFENDANTS
RULING
The plaintiff in filing the plaint herein also filed an interlocutory application of Notice of Motion dated 23. 3.15.
The Notice of Motion seeks interlocutory injunction to restrain the defendants on the ground that the 1st defendant fraudulently charged the property MOMBASA/BLOCK XXIX/42 KIBOKONI to the 2nd defendant which is in the name of Zubeida Yusuf Rehemtulaa deceased. The second defendant intendes to sell that property in the exercise of its statutory power of sale.
The Notice of Motion was fixed for hearing interpartes on 23rd June 2015 by the plaintiff. On 23rd June 2015 the plaintiff’s Learned counsel being absent with no reason offered the court dismissed the Notice of Motion for non attendance.
The Plaintiff by a Notice of Motion dated 23rd June 2015 seeks reinstatement of the dismissed application. That prayer is based on the ground that the Learned counsel for the plaintiff mistakenly went to another court on 23rd June 2015 believing that this matter was listed before that court.
Although the application for reinstatement was vigorously opposed by the 2nd defendant I have examine the issues raised herein. They are indeed very serious. It is intimated that the police and Interpol are searching for the 1st defendant who is in hiding and who is suspected to have committed the fraud. Even though the explanation of absence of counsel of the plaintiff on 23rd June 2015 is not entirely satisfactory, I however form the opinion that the justice of this matter will best be served by reinstating the Notice of Motion dated 23rd March 2015. This is in keeping with the overriding principle of section 1A of the Civil Procedure Cap 21.
CONCLUSION
I therefore grant the following orders:
The Notice of Motion dated 23rd March 2015 is hereby reinstated.
The interim orders issued on 30th March 2015 are hereby reinstated
The plaintiff shall pay the 2nd defendant the costs of Notice of Motion dated 23rd June 2015.
DATED and DELIVERED at MOMBASA this 21ST day of AUGUST, 2015.
MARY KASANGO
JUDGE
Coram
Before Justice Mary Kasango
C/A Kavuku
For Plaintiff:
For Defendant:
Court
Ruling delivered in their presence/absence in open court.
MARY KASANGO
JUDGE