[2001] KEHC 430 (KLR)
The application to set aside the ex parte decree nisi was dismissed on two main grounds: first, the application was procedurally misconceived because the order sought to be set aside was made by the Deputy Registrar, and therefore, any application to set it aside should be addressed to the Deputy Registrar, not the...
Source-derived case information.
- Citation
- [2001] KEHC 430 (KLR)
- Parties
- Plaintiff: Syronda Limited; Defendant: School Equipment Production Unit
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1612 of ??
- Procedural Posture
- Civil Suit / Ruling on Application to Set Aside Order
- Outcome
- application dismissed with costs
- Judges
- T Mbaluto
- Legal Topics
- Setting Aside Orders, Decree Nisi, Company Law Application, Temporary Injunctions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Syronda Limited
Plaintiff
School Equipment Production Unit
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Set Aside Order
Legal Issues
- 1 Whether the High Court has jurisdiction to set aside an ex parte decree nisi made by the Deputy Registrar.
- 2 Whether Order XXXIX of the Civil Procedure Rules applies to applications to set aside a decree nisi.
- 3 Whether a public liability company owned by a government ministry enjoys rights outside those provided under the Companies Act.
Ratio Decidendi
The application to set aside the ex parte decree nisi was dismissed on two main grounds: first, the application was procedurally misconceived because the order sought to be set aside was made by the Deputy Registrar, and therefore, any application to set it aside should be addressed to the Deputy Registrar, not the High Court Judge. Second, the application was incompetent because it was brought under Order XXXIX of the Civil Procedure Rules, which governs temporary injunctions and interlocutory orders and does not apply to decree nisi. On the merits, the court found the argument that the defendant, as a public company owned by the Ministry of Education, should not be subject to the usual...
Court Disposition
application dismissed with costs
Orders
- The application to set aside the ex parte decree nisi is dismissed with costs to the plaintiff.
Full Case Text
Judgment text and source record
9 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI MILIMANI COMMERCIAL COURTS CIVIL SUIT NO. 1612 OF 2000
SYRONDA LIMITED …………………………….………. PLAINTIFF VERSUS SCHOOL EQUIPMENT PRODUCTION UNIT ……... DEFENDANT
RULING
This application made on 5. 6.2001 and filed in court on the same day seeks to set aside an order purportedly made by this court on 12. 4.2001. That order in question was a decree nisi made ex parte by the Deputy Registrar. Accordingly, if it is to be set aside, I suppose it is the Deputy Registrar who should be doing so. The application is therefore clearly misconceived. But apart from that, the application is also incompetent for another reason. It is stated to be made under O. XXXIX of the Civil Procedure Rules. That order deals with temporary injunctions and interlocutory orders. I am therefore unable to see how the order applies to a decree nisi.
Regarding the merits of the application, I must also confess that I found the argument (which was the only ground) advanced in support of the application rather strange. Mr. Njau somehow thought that the defendant/judgment debtor should not be subjected to the usual laws applicable to companies because as he put
“it is a public company owned by the Ministry of Education.”
Since it is common ground that the defendant is a public liability company incorporated under the Companies Act, it is clear that the defendant can only enjoy such rights as are known to companies so registered. Consequently, the notion that it has other rights outside the Companies Act is not supported by any known law. For the above reasons, my finding is that the application wholly lacks merit and is dismissed with costs.
Dated at Nairobi this 22nd day of June, 2001.
T. MBALUTO JUDGE