[2001] KEHC 754 (KLR)
The court held that the application for transfer was incompetent and misconceived for three main reasons: (1) The suit in question had already been disposed of by the Mombasa court, and only pending suits or proceedings can be transferred under section 18(1) of the Civil Procedure Act; (2) The application for...
Source-derived case information.
- Citation
- [2001] KEHC 754 (KLR)
- Parties
- Applicant: Shamit Varma & 2 Others; Respondent: M. A. Bayusuf & Sons
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 296 of 2001
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Transfer of Proceedings
- Outcome
- application dismissed with costs
- Legal Topics
- Transfer of Proceedings, Examination of Directors, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Shamit Varma & 2 Others
Applicant
M. A. Bayusuf & Sons
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Transfer of Proceedings
Legal Issues
- 1 Whether the High Court has jurisdiction under section 18(1) of the Civil Procedure Act to transfer an application for examination of directors from one subordinate court to another.
- 2 Whether the applicants, as directors and not parties to the suit, have locus standi to seek transfer of proceedings.
- 3 Whether the application for examination of directors constitutes 'other proceedings' under section 18(1)(b) of the Civil Procedure Act.
Ratio Decidendi
The court held that the application for transfer was incompetent and misconceived for three main reasons: (1) The suit in question had already been disposed of by the Mombasa court, and only pending suits or proceedings can be transferred under section 18(1) of the Civil Procedure Act; (2) The application for examination of directors is not an 'other proceeding' within the meaning of section 18(1)(b), but rather an integral part of the execution process, inseparable from the main suit; (3) The applicants, being directors and not parties to the suit, lacked the requisite locus standi to seek transfer, as only parties to the suit may apply for such orders. The court further clarified that...
Court Disposition
application dismissed with costs
Orders
- The application is dismissed with costs to be paid by the applicants.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MISC APPLICATION NO. 296 OF 2001
SHAMIT VARMA & 2 OTHERS……………APPLICANT
VERSUS
M. A. BAYUSUF & SONS…………………RESPONDENT
RULING
This is an application by directors of Kenya Gypsum ltd for an order that Mombasa SRMC No. 4309/98 be transferred either to Nairobi Chief Magistrate’s Court of Kajiado SRMS Court for determination of the outstanding issues and alternatively for an order that the application for examination of directors in Mombasa SRMCC No. 4399/98 be dealt with either at CMS Court Nairobi or SRMS Court Kajiado.
The suit sought to be transferred was heard on the merits in Mombasa and a judgment entered against Kenya Gypsum ltd – the defendant in the suit. Execution proceedings have started. A warrant of attachment of defendant’s properties was given on 5. 9.2000. Apparently when the Decree holder failed to find any attachable properties if filed an application for examination of the directors under Order XXI Rule 36 Civil Procedure Rules. That application is fixed for hearing on 10. 5.2000.
The purpose of this application is to transfer the application for examination of the directors (applicants herein) from Mombasa to either Nairobi or Kajiado.
The application is made under section 18(1) of Civil Procedure Act and Order XXI of Civil Procedure Rules. Under Section 18(1)(b)(ii), the High Court has power on application of any of the parties or on its own motion to withdraw a suit or other proceedings pending in any subordinate court to transfer the suit for trial or disposal to any court subordinate to it.
Firstly, the suit SRM’s Civil suit No.4309/98 is not pending for hearing. It has been disposed of by the Mombasa Court. In my view the application for examination of the directors are not “other proceedings” in the context of section 18(1)(b) of Civil Procedure Act. The application for examination of the directors of an integral part of the suit.
Secondly, it is only parties to a suit who have the authority to apply for the transfer of the suit. Thus it is only the defendant Kenya Gypsum ltd that can apply for the transfer of the suit. The present applicants are not parties to the suit.
Thirdly, it is clear from order XXI Rule 36(b) CP Rules that applicants have been summoned for examination as officers of the defendant and not in their individual capacities. Indeed, the purpose of the examination is not to affix any personal liability on the applicants but to disclose the assets of the defendant if any. In reality, the application for examination of directors is against the defendant company through its directors. There is no independent suit against the directors, which would entitle them to make an application independently of the defendant company in the suit.
For the above reasons the application is incompetent and misconceived it is dismissed with costs to be paid by the applicants.
E. M. Githinji
Judge
4. 5.2001
Mr. Munga for applicants present
Mr. Otieno holding brief for Nyongesa present Order: Ruling to be typed and supplied as prayed by Mr.
Otieno
E. M. Githinji
Judge