[2011] KEHC 440 (KLR)
The court found that both parties failed to make full disclosure of their business relationship and the existence of an arbitration agreement when seeking ex parte orders. The court emphasized that it will not assist parties who withhold material facts or use the court to further private disputes rooted in business...
Source-derived case information.
- Citation
- [2011] KEHC 440 (KLR)
- Parties
- Plaintiff: Vista Holdings International Limited; Defendant: Spain Image (K) Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 464 of 2011
- Procedural Posture
- Civil Case / Interlocutory Application Ruling
- Outcome
- Interlocutory orders of 27th October 2011 staying earlier interim orders remain in force; applications to be heard together on 8th November 2011.
- Judges
- DO Ogembo
- Legal Topics
- Arbitration Clauses, Interlocutory Injunctions, Non Disclosure of Material Facts, Representation of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Vista Holdings International Limited
Plaintiff
Spain Image (K) Limited
Defendant
Procedural Posture
Civil Case / Interlocutory Application Ruling
Legal Issues
- 1 Whether the interim orders granted on 18th October 2011 should be extended or stayed pending inter-partes hearing.
- 2 Whether Mr. Taib should be barred from representing the Defendant due to alleged conflict of interest.
- 3 Whether the parties were under an obligation to disclose their business relationship and arbitration agreement to the court.
Ratio Decidendi
The court found that both parties failed to make full disclosure of their business relationship and the existence of an arbitration agreement when seeking ex parte orders. The court emphasized that it will not assist parties who withhold material facts or use the court to further private disputes rooted in business relationships. The orders granted on 27th October 2011, which stayed the earlier interim orders, remain in force until the scheduled inter-partes hearing. The court declined to vary its previous orders and directed that both the Plaintiff's and Defendant's applications be heard together on 8th November 2011, with the Plaintiff's application taking priority. The court also...
Court Disposition
Interlocutory orders of 27th October 2011 staying earlier interim orders remain in force; applications to be heard together on 8th November 2011.
Orders
- The only operative orders are those granted on 27th October 2011, staying the orders of 18th October 2011 until 8th November 2011.
- Service of the 27th October 2011 orders to be effected immediately upon the Plaintiff.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL CASE NO. 464 OF 2011
VISTA HOLDINGS INTERNATIONAL LIMITED …............................……….PLAINTIFF
- VERSUS –
SPAIN IMAGE (K) LIMITED………………………......................……….…DEFENDANT
R U L I N G
On 18th October 2011 the application dated 17th October 2011 was argued ex-parte by counsel for the Applicant Mr. Osundwa, and on the basis of his submissions, merits of the application and the information given to the court orders, interim orders were granted and the matter scheduled for inter-partes hearing today the 28th October 2011.
On 27th October 2011 counsel for the Respondent was Mr. Taib was heard on an application by way of Notice of Motion dated 26th October 2011 and on the basis of the submissions and on the merits of the application this court granted orders. Apparently these orders have not been served upon the Plaintiff /Applicant.
This morning the Plaintiff has filed another urgent application praying that Mr. Taib the counsel for the Defendant be barred from representing the Defendant and that the orders given on18th October be extended until the inter-partes hearing of the Applicant dated 17th October 2011.
Since all the applications have come to me I have noted that parties come to court and disclose only issues which they believe would give them the orders they seek. The Applicant on 18th October 2011 did not disclose to the court that the parties are closely related in business and that between them there is a business contract or agreement, or that the Plaintiff has an interest in the business of Defendant.The submissions were made as if the parties are total strangers with one infringing the rights of the other and that the infringement was just a sudden discovery and hence the urgency of the matter. This court granted the orders requested.
Yesterday, Mr. Taib moved the court through the application I have stated above. The main thrust of which there is an agreement between the parties which requires that all disputes first go through the process of arbitration. This court then granted the orders on merit of the application. What Mr. Taib did not tell the court is that he is also closely associated with one of the parties. This is now the subject matter of the latest application.
As long as parties to suit will not disclose all the information surrounding the subject matter, this court will listen to all applications and give orders as appropriate.
What however is certain in this suit is that the protagonists are relatives in business. This court will not help them fight their wars. But when they bring an application for hearing the court will hear it and make orders as appropriate.
I granted orders yesterday, among them staying the orders granted on 18th October 2011 until 8th November 2011. I see no reason to vary it. It appears the said order has not been served upon the Plaintiff. Service should be done immediately so that the Plaintiff understands the position. Parties have agreed by consent to have the Plaintiff’s application dated today 28th October 2011, and the Defendant’s application dated 26th October 2011 heard together on 8th November 2011, with the former taking priority.
Accordingly these applications will be heard on 8th November 2011. The only orders in place are those granted by this court on 27th October 2011.
It is so ordered.
DATED, READ AND DELIVERED AT NAIROBI
THIS 28TH DAY OF OCTOBER 2011.
E. K. O. OGOLA
JUDGE
PRESENT:
Mr. Osundwa for the Plaintiff
Mr. Taib for the Respondent
Irene - Court Clerk