[2005] KEHC 586 (KLR)
The court determined that before it can decide on the application to set aside the ex-parte judgment, it must first resolve the contested issue of whether Mr. Esmail and his mother are the lawful directors of the 3rd Defendant and thus have authority to bring the application. The court found that the question of...
Source-derived case information.
- Citation
- [2005] KEHC 586 (KLR)
- Parties
- Plaintiff: Raphael Kavai Maitha; Plaintiff: Joyce Mutio Mutau; Plaintiff: James Njuguna Miira; Plaintiff: Eunice Njeri Kariuki; Defendant: Jays Syndicate Ltd.; Defendant: Lake View Development Co. Ltd.; Defendant: Belgo Holdings Limited; Defendant: Joseph S. M. Maina
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 507 of 2003
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Ex Parte Judgment
- Outcome
- Application for setting aside ex-parte judgment deferred pending examination of Mr. Esmail on directorship.
- Judges
- PJ Ransley
- Legal Topics
- Setting Aside Ex Parte Judgment, Authority to Act, Director Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Raphael Kavai Maitha
Plaintiff
Joyce Mutio Mutau
Plaintiff
James Njuguna Miira
Plaintiff
Eunice Njeri Kariuki
Plaintiff
Jays Syndicate Ltd.
Defendant
Lake View Development Co. Ltd.
Defendant
Belgo Holdings Limited
Defendant
Joseph S. M. Maina
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Ex Parte Judgment
Legal Issues
- 1 Whether Mr. Esmail has authority to bring the application on behalf of the 3rd Defendant as a director.
- 2 Whether the ex-parte judgment should be set aside.
Ratio Decidendi
The court determined that before it can decide on the application to set aside the ex-parte judgment, it must first resolve the contested issue of whether Mr. Esmail and his mother are the lawful directors of the 3rd Defendant and thus have authority to bring the application. The court found that the question of directorship is central and unresolved, as evidenced by ongoing litigation and previous orders restraining others from acting as directors. Accordingly, the court ordered that Mr. Esmail be examined specifically on the question of his and his mother’s entitlement as directors of the 3rd Defendant. Only after this factual issue is resolved can the court proceed to determine the...
Court Disposition
Application for setting aside ex-parte judgment deferred pending examination of Mr. Esmail on directorship.
Orders
- Mr. Esmail to be examined on the sole question of his and his mother’s entitlement as directors of the 3rd Defendant.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL & ADMIRALTY DIVISION
CIVIL CASE 507 OF 2003
RAPHAEL KAVAI MAITHA………….………….…….………….1ST PLAINTIFF
JOYCE MUTIO MUTAU……………..…………………..…….… 2ND PLAINTIFF
JAMES NJUGUNA MIIRA …………………………………….... 3RD PLAINTIFF
EUNICE NJERI KARIUKI ..…………….....…………….………...4TH PLAINTIFF
VERSUS
JAYS SYNDICATE LTD. ……….…………………………..….1ST DEFENDANT
LAKE VIEW DEVELOPMENT CO. LTD. …...……….………2ND DEFENDANT
BELGO HOLDINGS LIMITED ……..……...……………...… 3RD DEFENDANT
JOSEPH S. M. MAINA ………..………….………………… 4TH DEFENDANT
RULING
The 3rd defendant seeks to set aside the ex-parte judgement herein. It is supported by the application of Mr. Akber Abdullah Kassam Esmail who depones that he and his mother are the directors of the 3rd Defendant.
This statement is challenged in the affidavit of Raphael Kavai Maitha who claims that Robert Kotch Otachi and Wilson Birir are the true directors.
Mr. Githu Muigai for the Respondent wishes to cross-examine Mr. Esmail on his statement that he and his mother are the true directors.
Mr. Ochieng Oduol for the Applicant opposed the application and referred to a ruling of Mr. Justice Njagi of the 27. 6.2005 in the case of Belgo Holdings Ltd. v Robert Kotch Otachi and Wilson Birir HCCC. No. 454 of 2004 in which he made an order extending an interim order made in that suit extending an order issued therein on the 13. 8.2004. The purpose of that order was to restrain the two Defendants from claiming to be directors of the Plaintiff or from acting on its behalf.
The issue of whether they are directors is still alive in that case.
As the authority of Mr. Esmail to bring this application is challenged it is a matter which I must resolve in order to give a decision on whether the said judgement should be set aside or not.
At some time or other this issue must be resolved and I therefore make an order that Mr. Esmail be examined on this sole question only, of his and his mother’s entitlement as directors of the 3rd Defendant.
Orders accordingly.
Dated and Delivered at Nairobi on 3rd October, 2005.
P. J. RANSLEY
JUDGE