[2019] KEHC 2829 (KLR)
The court held that since it had previously directed the dispute to be determined as a matter of law by way of case stated, and that order remained unchallenged, it would not entertain a request to set aside or vary that direction without a formal application. The court emphasized that the issue to be determined is...
Source-derived case information.
- Citation
- [2019] KEHC 2829 (KLR)
- Parties
- Plaintiff: Tahir Sheikh Said Grain Millers Limited (Under Administration); Defendant: NIC Bank Limited; Defendant: Garam Investments Auctioneers Limited
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 65 of 2017
- Procedural Posture
- Civil Suit / Ruling on Directions for Determination by Case Stated
- Outcome
- Directions reaffirmed for determination by case stated on the basis of affidavits and submissions; no adjournment granted.
- Judges
- CA Otieno
- Legal Topics
- Case Stated Procedure, Injunctions, Consent of Administrator, Security Realisation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tahir Sheikh Said Grain Millers Limited (Under Administration)
Plaintiff
NIC Bank Limited
Defendant
Garam Investments Auctioneers Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Directions for Determination by Case Stated
Legal Issues
- 1 Whether the dispute can be determined as a matter of law without production of evidence.
- 2 Whether there was consent by the administrator to sell the security at the time the suits were filed.
- 3 Whether the application for injunction should be abandoned in favour of determination by case stated.
Ratio Decidendi
The court held that since it had previously directed the dispute to be determined as a matter of law by way of case stated, and that order remained unchallenged, it would not entertain a request to set aside or vary that direction without a formal application. The court emphasized that the issue to be determined is whether there was consent by the administrator to sell the security at the time the suits were filed, and this can be resolved on the basis of affidavits and submissions already on record, without the need for oral evidence or further procedural steps under Order 35 Rule 5.
Court Disposition
Directions reaffirmed for determination by case stated on the basis of affidavits and submissions; no adjournment granted.
Orders
- Parties to address the court on the basis of affidavits on record regarding the isolated legal issue.
- No adjournment granted; previous directions for determination by case stated remain in force.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL SUIT NO. 65 OF 2017
TAHIR SHEIKH SAID
GRAIN MILLERS LIMITED (Under Administration)......................PLAINTIFF
VERSUS
1. NIC BANK LIMITED
2. GARAM INVESTMENTS AUCTIONEERS LIMITED...........DEFENDANTS
RULING III
1. On 15/10/2018, this court having conference with the parties on the import of the dispute in these two matters made the following observations:
“This to this court is a dispute that can be resolved without production of evidence and within the same time that would be necessary to urge the application for injunction, if not shorter. However as Mr. Mugambi says he has no firm instructions, I stand over the matter to the 01/11/2018 to enable Ms. Mburu attend court and give her views. On that day let parties address the court on why application for injunction cannot be abandoned and the main suit cannot be heard by way of case stated”.
2. When parties attended court on 1/11/2018 and after the three advocates addressed the court, the court gave the following order.
“The matters as consolidated shall proceed by way of case
stated to determine question whether or not on the dates the
two suits were filed, there was consent by the administrator to sell the security. Let parties file submissions within 30 days from today and come to court on 25/01/2019 for highlighting…
FURTHER ORDERS
Let Ms. Mburu file and serve an Affidavit within 14 days from today. That be done before 15/11/2018. The parties shall thereafter file submissions within 30 days from 15/11/2018”.
3. Today after the court declined to have the matter adjourned Mr. Gikandi has sought directions that Order 35 Rule 5 be complied with before the matter proceeds.
4. This court did on 1/11/2018 direct that the dispute in the matter remains a matter of law that needs no trial by production of evidence. That order by the court remains unchallenged and to give the direction Mr. Gikandi seeks will be to have the same set aside without an appropriate application. I am hesitant to proceed so and now direct that parties address the court on the basis of affidavit on record so that the court determines the isolated issue as has been repeatedly said.
Dated and delivered at Mombasa this 25th day of January 2019.
P.J.O. OTIENO
JUDGE
Court
Ruling delivered in Court in the presence of:-
Mr. Gikandi for plaintiff in HCC 13/2018
Mr. Ngoya for plaintiff in HCC 65/2017
Miss Mburu for the defendant in both.
Hon. Justice P.J.O. Otieno J