[2021] KEHC 5670 (KLR)
The court held that after a suit has been fully heard and is pending judgment, it is not open to the parties to file fresh applications seeking to amend pleadings or to transfer the suit to another court. The court reasoned that such applications are misconceived and misplaced, as they would amount to re-opening a...
Source-derived case information.
- Citation
- [2021] KEHC 5670 (KLR)
- Parties
- Plaintiff: Swani Coffee Estates Limited; Defendant: Terra Fleur Limited; Defendant: Bank of India Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 202 of 2008
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Applications After Full Hearing, Pending Judgment
- Outcome
- Both the plaintiff's application to amend the plaint and the 1st defendant's application to transfer the suit are struck out with no orders as to costs.
- Judges
- WA Okwany
- Legal Topics
- Amendment of Pleadings, Transfer of Suit, Mesne Profits, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Swani Coffee Estates Limited
Plaintiff
Terra Fleur Limited
Defendant
Bank of India Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Applications After Full Hearing, Pending Judgment
Legal Issues
- 1 Whether the plaintiff should be allowed to amend the plaint after the full hearing of the suit has concluded.
- 2 Whether the suit should be transferred to the Environment and Land Court at Thika after the hearing has been completed and judgment is pending.
- 3 Whether parties can re-open a concluded case through fresh applications before judgment is delivered.
Ratio Decidendi
The court held that after a suit has been fully heard and is pending judgment, it is not open to the parties to file fresh applications seeking to amend pleadings or to transfer the suit to another court. The court reasoned that such applications are misconceived and misplaced, as they would amount to re-opening a concluded case. The proper procedure is for parties to await the delivery of judgment and, depending on the outcome, pursue any remedies available to them at that stage. Accordingly, the court struck out both the plaintiff's application to amend the plaint and the 1st defendant's application to transfer the suit, with no orders as to costs.
Court Disposition
Both the plaintiff's application to amend the plaint and the 1st defendant's application to transfer the suit are struck out with no orders as to costs.
Orders
- The plaintiff's application dated 7th October 2019 seeking amendment of the plaint is struck out.
- The 1st defendant's application dated 4th December 2019 seeking transfer of the case to the Environment and Land Court at Thika is struck out.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
COMMERCIAL AND TAX DIVISION
HCCC NO. 202 OF 2008
SWANI COFFEE ESTATES LIMITED........................................................PLAINTIFF
VERSUS
TERRA FLEUR LIMITED.................................................................1ST DEFENDANT
BANK OF INDIA LIMITED...............................................................2ND DEFENDANT
RULING
Background
1. The plaintiff herein sued the defendants through the plaint dated 16th April 2008 and amended on 7th February 2011 seeking the following orders: -
A. An injunction restraining the 1st defendant herein by itself, servants, agents or otherwise howsoever from entering into, tilling, farming, accessing or in any manner whatsoever interfering with the plaintiff property, to wit L.R. No. 304/9.
B. A mandatory injunction compelling the 1st defendant herein by itself, servants, agents, or otherwise however to give vacant possession of the property herein to wit L.R. No. 304/5 to the plaintiff.
C. An order that the 1st defendant herein do re-convey the suit property herein to with L.R. No. 304/5 to the plaintiff.
D. An order that the 1st defendant herein do deliver vacant possession of the suit property herein to wit L.R. No. 304/5 to the plaintiff.
E. An order of mesne profits.
2. The matter proceeded before different judges of this division and the Court of Appeal on several interlocutory applications and appeal.
3. The main suit was however eventually heard by Farah Amin J. on 15th and 16th May 2017 after which she fixed the matter for judgment on 17th January 2018 and directed parties to file and exchange written submissions.
4. The case was subsequently mentioned before Farah Amin J. on numerous occasions but suffice as to say that no judgment was delivered by the said judge who vide a letter dated 14th September 2020 returned the file to the then Presiding Judge of this Division, Justice Mary Kasango on the basis that she (Amin J.) had been transferred to Mombasa.
5. On 28th January 2021 Mabeya J. the Presiding Judge of this Division allocated the file to this court for my directions. When the matter came up for mention, for the first time before me, on 4th March 2021 counsel for the parties informed the court that there were two pending applications for hearing, namely: -
a) The 1st defendant’s application dated 4th December 2019 seeking the transfer of the case to Environment and Land Court at Thika.
b) The plaintiff’s application dated 7th October 2019 seeking the amendment of the plaint.
6. As I have already stated in this ruling, the main suit has already been heard fully and has been pending judgment before Amin J. It is not clear to this court why the said Amin J. did not deliver the said judgment despite the fact that it has been pending since May 2017.
7. Be that as it may, I am of the view that the mere fact that the judgment has not been delivered is not a carte blanche for parties to re-open the case through fresh applications for amendment and to transfer the concluded case to a different court.
8. My take is that the parties should in the circumstances of this case, await the judgment of the court and depending on the outcome move the court appropriately.
9. For the above reasons I find that the applications are misconceived and misplaced. Consequently, I strike them out with no orders as to costs.
10. I direct that the proceedings taken by Amin J. at the hearing be typed so that this court can give directions on the pending judgement.
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT NAIROBI THIS 1ST DAY OF JULY 2021 IN VIEW OF THE DECLARATION OF MEASURES RESTRICTING COURT OPERATIONS DUE TO COVID -19 PANDEMIC AND IN LIGHT OF THE DIRECTIONS ISSUED BY HIS LORDSHIP, THE CHIEF JUSTICE ON THE 17TH APRIL 2020.
W. A. OKWANY
JUDGE
In the presence of:
Ms Kamau for Wandabwa for Plaintiff.
Ms Wangare for Kihara for 2nd Defendant.
Ms Ndungu for Kihara for 1st Defendant.
Court Assistant: Sylvia.