[2014] KEHC 834 (KLR)
The court found that the requirement for the Interested Party to file a report was not a novel imposition by the court but a contractual obligation inherent in his appointment as statutory manager. The applicant was aware of this obligation and had previously acknowledged the possibility of preparing and filing such...
Source-derived case information.
- Citation
- [2014] KEHC 834 (KLR)
- Parties
- Respondent: Sammy Mutua Makove (The Commissioner of Insurance); Applicant: Mr. Jackson K. Maingi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Suit 126 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside or Review Court Order
- Outcome
- application dismissed with costs
- Judges
- DO Ogembo
- Legal Topics
- Review of Court Orders, Statutory Management, Natural Justice, Contractual Obligations
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sammy Mutua Makove (The Commissioner of Insurance)
Respondent
Mr. Jackson K. Maingi
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside or Review Court Order
Legal Issues
- 1 Whether the Interested Party was denied the right to be heard before the order of 30th July 2014 was made.
- 2 Whether the Interested Party is entitled to a review or setting aside of the order requiring him to file a report as statutory manager.
- 3 Whether the inability to prepare the report due to lack of resources constitutes sufficient ground for review.
Ratio Decidendi
The court found that the requirement for the Interested Party to file a report was not a novel imposition by the court but a contractual obligation inherent in his appointment as statutory manager. The applicant was aware of this obligation and had previously acknowledged the possibility of preparing and filing such a report. The court held that the applicant was not condemned unheard, as the duty to report was clear from the outset. The applicant's claims of impossibility due to lack of resources were not substantiated to the court's satisfaction, especially since a report had already been prepared and attached to the application. The grounds advanced for review did not meet the...
Court Disposition
application dismissed with costs
Orders
- The Notice of Motion dated 16th September 2014 is dismissed with costs.
- The Interested Party/Applicant shall have a further 30 days from the date of this ruling to fully comply with the orders of 30th July 2014.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL & ADMIRALTY DIVISION
MISCELLANEOUS CIVIL SUIT NO. 126 OF 2014
IN THE MATTER OF THE INSURANCE ACT CHAPTER 487 OF THE LAWS OF KENYA
AND
IN THE MATTER OF STANDARD ASSURANCE COMPANY OF KENYA LIMITED (Under Statutory management)
SAMMY MUTUA MAKOVE
(THE COMMISSIONEROF INSURANCE):::::APPLICANT/RESPONDENT
AND
MR. JACKSON K. MAINGI:::::::::::::::::::INTERESTED PARTY/APPLICANT
R U L I N G
The application before the Court is the Notice of Motion dated 16th September 2014 and filed in Court on even date. It is expressed to be brought under Order 1 Rule 10 (2), Order 45 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules 2010 as well as Section 3A of the Civil Procedure Act.
The application is seeking for orders that this Honourable Court do set aside the Court Order of 30th July 2014 in relation to the interested party and that the said Orders be reviewed to the extent that it relates to the interested party. It is based on the grounds stated in the application and is supported by the affidavit of the Interested Party, the Applicant herein.
The application is opposed. The Respondent filed a Replying affidavit sworn by the Commissioner of Insurance, SAMMY MUTUA MAKOVE on 24th September 2014.
By an order of this Court dated 30th July 2014, the Statutory Manager, Mr. Jackson Maingi, was ordered to make and file a report in this Court covering the period during which he was the Statutory manager of Standard Assurance Company. The Applicant was aggrieved by the Order on the basis that he was not given an opportunity be heard contrary to the provisions of the Constitution. It is this Order that has prompted the Applicant to come to Court seeking a review of the same or setting aside of the said Order.
It is the Applicant’s case that it is impossible to prepare the Report as he was unable to get the services of crucial staff mainly an accountant due to lack of funds. It is averred by the Applicant that when he did the first report, he highlighted the challenges which he faced but the same were never addressed. As a result, it is the Applicant’s position that it is impossible to prepare the required report.
On the other hand, it is the Respondent’s case that there is no breach of principles of natural justice in the Court requiring the Interested Party to provide a report for the period of his tenure as Statutory manager. According to the Respondent, it is not impossible to prepare the Report as averred by the interested party and no legal basis is therefore laid for this Honourable Court to review the Order.
I have considered the application, the affidavits on record as well as the submissions by Counsel. Having done so, I take the following view of the matter.
The Report required in this matter is not a requirement by the Court, but a term of Contract under which the interested party took up his appointment. It is therefore not accurate for the Interested Party to state that he was condemned unheard. The report was a requirement he was aware of and would be required to file at the end of his Contract or provision of services.
I take note that the Applicant in his submissions has acknowledged that a report could actually be done and filed in this Court. There is a report dated 11th March 2014 attached to the Application and marked “JM 5”. All that was required of the interested party was to file a Report covering the period of his tenure.
However, it is vexing that the same had to be filed after taking the parties back and forth. This is a waste of the Court’s time. All the averments by the Interested Party in his Supporting affidavit sworn on 16th September 2014, the attachments therein and even the grounds of the application were sufficient to form the required Report.
In light of the foregoing, it is plain that the Applicant is not entitled to orders of review. In the circumstances, it is upon the Applicant to obey the Orders of 30th July 2014 requiring him to file a Report. Therefore, the order that commends itself to this Court is to dismiss the Notice of Motion dated 16th September 2014 with costs.
The Interested Party/Applicant shall have a further 30 days from today to fully comply with the orders of this court at 30th July 2014.
Orders accordingly.
READ, DELIVERED AND DATED AT NAIROBI THIS 19TH DAY OF DECEMBER 2014
E. K. O. OGOLA
JUDGE
PRESENT:
M/s Kairo for the Applicant
No appearance for the Defendant
Teresia – Court Clerk