[2013] KEHC 5644 (KLR)
The court found that the applicant had established a prima facie case regarding the 21 Bitutainers of Bitumen, as evidenced by the respondent's own admission of their presence in its yard. The risk of waste or alienation was heightened by the takeover of the yard by a third party, Kenya Highways Authority. The...
Source-derived case information.
- Citation
- [2013] KEHC 5644 (KLR)
- Parties
- Plaintiff: South Shore International Limited; Defendant: Talewa Road Contractors Limited
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 73 of 2013
- Procedural Posture
- Civil Suit / Interlocutory Application (ruling on Notice of Motion for Conservatory Orders)
- Outcome
- Application partly allowed; conservatory order granted for custody of Bitutainers; other prayers declined.
- Judges
- GO Shikwe
- Legal Topics
- Interlocutory Injunctions, Security for Costs, Conservatory Orders, Debt Recovery, Custody of Goods
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
South Shore International Limited
Plaintiff
Talewa Road Contractors Limited
Defendant
Procedural Posture
Civil Suit / Interlocutory Application (ruling on Notice of Motion for Conservatory Orders)
Legal Issues
- 1 Whether the applicant is entitled to conservatory orders for the custody of 21 Bitutainers pending determination of the suit.
- 2 Whether the respondent should provide security for the sum claimed and costs.
- 3 Whether the court should grant summary judgment at the interlocutory stage.
Ratio Decidendi
The court found that the applicant had established a prima facie case regarding the 21 Bitutainers of Bitumen, as evidenced by the respondent's own admission of their presence in its yard. The risk of waste or alienation was heightened by the takeover of the yard by a third party, Kenya Highways Authority. The balance of convenience favored granting conservatory orders to preserve the Bitutainers pending the hearing and determination of the suit. However, the court declined to grant summary judgment or require the respondent to provide security for the claimed sum at this interlocutory stage, as such orders would amount to a premature determination of the substantive dispute. The court...
Court Disposition
Application partly allowed; conservatory order granted for custody of Bitutainers; other prayers declined.
Orders
- The 21 Bitutainers to be kept in the custody of Misa Mogaro Auctioneers pending hearing and determination of the suit.
- The O.C.S Changamwe Police Station to ensure compliance with this order.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL SUIT NO. 73 OF 2013
SOUTH SHORE INTERNATIONAL LIMITED.....................................PLAINTIFF
VERSUS
TALEWA ROAD CONTRACTORS LIMITED ….............................. DEFENDANT
RULING
This Notice of Motion application is brought to Court pursuant to order 40 rules 1 and 4 and order 51 rule 1 and order 26 of the Civil Procedure Rules and Section 1A, 2A and 3A of the Civil Procedure Act.
It seeks orders;
Spent
Spent
That this Court be pleased to issue an order directing that the 21 Bitutainers belonging to the Applicant be kept in the custody of Misa Mogaro Auctioneers an officer of this Court pending the hearing and determination of this suit and in the alternative
An order directing that the 21 Bitutainers be put in the custody of the Applicant pending hearing and determination of this suit.
An order to issue directing the Respondent to provide Ksh. 48,048,000/= being the sum claimed by the applicant in the suit filed herewith and security for costs of Ksh. 2 million pending hearing and determination of this suit failure to which summary Judgment to be entered against the Respondent and
That the O.C.S Changamwe Police Station do ensure compliance of this order.
The grounds which are found in the body of the application are that;
The Respondent has intentionally refused to pay the Applicant Ksh. 48,048,000/= being the cost of 462 tonnes of Bitumen supplied to it by the Applicant and release the 21 Bitutainers belonging to the Applicant.
That the Respondent's yard where the applicants Bitutainers are stored has been taken over by a third party Kenya Highways Authority thus the security of the Applicants 21 Bitutainers are in danger of being damaged, wasted or even being alienated by a third party to this suit.
I have heard Counsel for the applicants oral submissions and perused the Supporting affidavit of Simon Muchene the Managing Director of the plaintiff company and the annextures thereto and in particular Annexture marked 23 which is a letter dated 10th June, 2013 addressed to Mr. Simon Muchene by one of the Directors of the Defendant company one Mr. John Wainaina where at paragraphs 5, 6, 7, 8 he concedes the presence in their yard of 21 containers of Bitumen belonging to the plaintiff which should be collected upon payment of storage charges.
I am satisfied that the applicant has a prima facie case in respect of the 21 containers of Bitumen and the balance of convenience tilts to there being conservatory orders as there is real danger that the goods could be wasted and or alienated by the taking over of the Defendants yard by Kenya Highways Authority as contended by the Applicant.
Prayer 5 would amount to a determination of the suit at this interlocutory stage. I decline to grant it at this stage.
The upshot is that prayer 3 of the application which seeks to have the 21 Bitutainers kept in the custody of Misa Mogaro Auctioneers is granted as prayed.
Further, the O.C.S Changamwe Police Station to ensure compliance of this order. Costs in the cause.
Ruling dated and delivered in open Court this 28th day of June, 2013.
M. MUYA
JUDGE
28TH JUNE, 2013
In the presence of :-
Mr. Egunza for the applicant
Court clerk Musundi