[2021] KEHC 6393 (KLR)
The court found that since the main suit had already been struck out for non-compliance with court directions and the stay orders had been discharged, the Notice of Motion dated 13th May 2021 was incompetent and had no legal basis. As a result, the application could not be entertained, and there was no need for...
Source-derived case information.
- Citation
- [2021] KEHC 6393 (KLR)
- Parties
- Applicant: San Valencia Limited; Respondent: Commissioner of Co-operatives Development; Interested Party: Valencia Sacco Society Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Judicial Review Miscellaneous Application 238 of 2016
- Procedural Posture
- Judicial Review Miscellaneous Application / Ruling on Notice of Motion to Release Security Deposit
- Outcome
- application struck out
- Judges
- P Nyamweya
- Legal Topics
- Judicial Review, Striking Out of Suit, Release of Security, Consent Settlement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
San Valencia Limited
Applicant
Commissioner of Co-operatives Development
Respondent
Valencia Sacco Society Limited
Interested Party
Procedural Posture
Judicial Review Miscellaneous Application / Ruling on Notice of Motion to Release Security Deposit
Legal Issues
- 1 Whether the Notice of Motion dated 13th May 2021 is competent and properly before the court.
- 2 Whether the court should order the release of Kshs. 2,000,000 held as security to the Interested Party.
- 3 Whether costs should be awarded for the application.
Ratio Decidendi
The court found that since the main suit had already been struck out for non-compliance with court directions and the stay orders had been discharged, the Notice of Motion dated 13th May 2021 was incompetent and had no legal basis. As a result, the application could not be entertained, and there was no need for further orders regarding the release of the security or costs. The court therefore struck out the application and made no order as to costs.
Court Disposition
application struck out
Orders
- The ex parte Applicant’s Notice of Motion dated 13th May 2021 is hereby struck out for being incompetently filed.
- There shall be no order as to costs.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW MISC APPLICATION NO. 238 OF 2016
BETWEEN
REPUBLIC.....................................................................................APPLICANT
VERSUS
COMMISSIONER OF CO-OPERATIVES DEVELOPMENT....RESPONDENT
AND
VALENCIA SACCO SOCIETY LIMITED.......................INTERESTED PARTY
EX PARTE APPLICANT:
SAN VALENCIA LIMITED
RULING
The Application
1. The ex parte Applicant herein, San Valencia Limited, has filed an application by way of a Notice of Motion dated 13th May 2021, wherein it is seeking the following orders:
1. This Application be certified as extremely urgent and in the first instance service of the same be dispensed with and be heard ex-parte.
2. The sum of Kshs. 2,000,000/= retained as security in bank account No.100182815 held by the Applicant herein SAN VALENCIA LIMITED with (formally) NIC (currently) Bank Junction Branch be released to the Interested Party herein VALENCIA SACCO SOCIETY LIMITED .
3. Costs of this Application be provide for.
2. The said application is supported by an affidavit sworn on even date by Phineas Kimathi the ex parte Applicant’s, who states that he is the ex parte Applicant’s Chief Executive Officer. The grounds for the application are the ex parte Applicant and the Interested Party have since agreed and consented to the money held as security being released to the Interested Party to enable its operations and amicably settle this matter. Further, that this matter has remained dormant since May 2016 and all the parties want to amicably settle the matter out of court
3. I have perused the court record, and note that this suit was struck out by Odunga J. on 19th September 2021, after the ex parte Applicant failed to comply with directions to file a substantive Notice of Motion, and the stay orders were discharged. The ex parte Applicant’s Notice of Motion dated 13th May 2021 therefore has no leg to stand on as its stratum no longer exists, and in any event is not necessary, as the stay orders are no longer in place.
The Orders
4. In the circumstances, I hereby direct and order as follows:
I.The ex parte Applicant’s Notice of Motiondated 13th May 2021, is hereby struck out for being incompetently filed.
II.There shall beno order as to costs.
5. Orders accordingly.
DATED AND SIGNED AT NAIROBI THIS 21ST DAY OF MAY 2021
P. NYAMWEYA
JUDGE