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Citation
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Judgment date
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| December 2009 |
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Application for prerogative orders struck out for being prematurely filed without prior leave; leave requirement substantive.
Judicial review – prerogative orders (certiorari, mandamus, prohibition) – mandatory requirement to obtain leave before applying – failure to obtain leave renders application premature and fatally defective; Procedural law – leave requirement substantive not merely technical; Civil procedure – application struck out with costs; Administrative action – seizure and forfeiture of vehicles following discovery of contraband.
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14 December 2009 |
| November 2009 |
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24 November 2009 |
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13 November 2009 |
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12 November 2009 |
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Affidavit contained defects; some remediable, but the supporting affidavit was struck out and application dismissed.
Civil procedure – Affidavits: Order XIX r.3 requirements for personal knowledge and verification; jurat formalities under Notaries Public and Commissioners for Oaths Act s.8; distinction between incurable and remediable affidavit defects; remedy by fresh affidavit.
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4 November 2009 |
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Affidavit defects: plural jurat and unsupported averments curable by fresh affidavit; defective supporting affidavit struck out.
Civil procedure – affidavits for interlocutory applications (Order XIX r.3) – requirement of personal knowledge; verification and jurat requirements – plural verification and "joint" jurat when single deponent – curability of affidavit defects – disclosure in jurat of place and date; sufficiency of commissioner’s address – discretion to allow fresh affidavit or strike out.
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4 November 2009 |
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3 November 2009 |
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Court granted temporary injunction preserving licence approval status quo over disputed spectrum pending suit.
Temporary injunctions — interlocutory relief — tests: prima facie/serious question, irreparable injury, balance of convenience — preservation of status quo (approval letter dated 24 April 2007) — administrative discretion in spectrum allocation must be exercised judiciously — evidential burden in interlocutory applications.
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3 November 2009 |
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3 November 2009 |
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Commercial Division has jurisdiction over company governance disputes despite absent valuation; preliminary objections dismissed with costs.
• Commercial jurisdiction – High Court (Commercial Division) – Whether omission of monetary valuation in plaint ousts jurisdiction – Order VII r.1(i) CPC and Commercial Court Rules.
• Company law – governance disputes – misappropriation of company property (title deed, common seal) – cause of action under Companies Act.
• Civil procedure – preliminary objections – abuse of process; frivolous, vexatious or scandalous pleadings; consolidation of causes of action.
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2 November 2009 |
| October 2009 |
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26 October 2009 |
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23 October 2009 |
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Court dismissed preliminary objections, holding the plaint disclosed a cause of action and defects were curable by amendment.
Civil procedure – preliminary objections – mode of raising objections – whether separate notices are permissible.* Pleadings – cause of action – sufficiency of plaint to disclose contractual claim and assignment.* Service and time limits – computation of time where summons served via an affiliated entity and court-granted filing dates.* Pleadings – signature and verification requirements (Order VI Rule 14) – irregularities curable by amendment.* Res judicata and non-joinder – adjudication between different parties does not automatically bar fresh proceedings against assignee.
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23 October 2009 |
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23 October 2009 |
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23 October 2009 |
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22 October 2009 |
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A plaintiff cannot sue a disclosed principal's local agent for contractual breaches or evade an exclusive UK jurisdiction clause.
Agency law – disclosed principal – agent not liable for principal’s contractual breaches absent express agreement; Cause of action – plaint must disclose right to sue on its face; Jurisdiction – exclusive jurisdiction clause (bill of lading) vests jurisdiction in foreign courts and bars local suit; Shipping Agency Act – describes agent’s role but does not impose liability for principal’s omissions; Procedure – amendment under Order VII r.1(a) ineffective where court lacks jurisdiction.
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22 October 2009 |
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Company-management and share-variation disputes must be instituted by petition under the Companies Act, not by plaint.
Companies Act (ss.73, 233) — Variation of share rights and unfairly prejudicial conduct — Petition is the mandatory procedure; "may" in s.233(1) denotes a member's option to pursue relief, not procedural choice — Wrong procedural commencement renders suit incurably defective and subject to striking out.
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15 October 2009 |
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5 October 2009 |
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An interlocutory application is incompetent if it cites general provisions instead of the specific Order XXXVII rules governing the relief.
Civil procedure – execution of decree – sale in execution – relief to set aside sale for irregularity under Order XXI r.88(1) – interlocutory orders generally under sections 68 and 95 CPC – where specific rules (Order XXXVII) exist, specific provisions must be cited – wrong enabling provision renders application incompetent.
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5 October 2009 |
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Interlocutory challenge to sale in execution struck out for relying on wrong enabling provisions.
Execution of decree – challenge to sale in execution for irregularity – remedy under Order XXI r.88(1); interlocutory relief governed by Order XXXVII – general provisions (s.68, s.95) not a substitute for specific rules; citing wrong enabling provision renders application incompetent.
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5 October 2009 |
| September 2009 |
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25 September 2009 |
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Preliminary objection that defendants are non-existent companies dismissed as mixed law and fact; amendment/joinder requires formal application.
Civil procedure – preliminary objection – point of law versus mixed law and fact – allegation that defendants are non-existent companies cannot be decided summarily without evidence; Order 1 Rules 2 and 4 CPC – joinder, substitution and amendment of parties require proper application, court will not act sua sponte.
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25 September 2009 |
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25 September 2009 |
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Application for extension of time struck out as incompetent for being brought under the wrong statutory provision.
Appellate procedure – extension of time – wrong enabling provision – omission to cite s.11(1) Appellate Jurisdiction Act – jurisdictional defect; Amendment – when and how cure may be sought; Limitation and illegality arguments – raised but not decided; Civil Procedure – Order VIII r.14(2)(b) (ex parte proof) and Law of Limitation Act referenced.
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24 September 2009 |
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Anniversary payments under the prospecting agreement ceased upon respondent's commencement of exploration; applicant's claim dismissed.
Contract interpretation – prospecting/mining option agreement – Article 3: front payment and anniversary payments until commencement of exploration or abandonment due to negative feasibility results; Evidence – proof of commencement of exploration – admissible letter notifying commencement; applicant's failure to dispute notification; Remedy – claim dismissed; costs to respondent (taxed).
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18 September 2009 |
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Plaint failed to disclose a cause of action against the second defendant; plaint rejected as to that defendant.
Civil procedure – Pleadings – Cause of action – Whether plaint discloses a cause of action against a joined defendant – Determination by perusal of plaint and annexures – Rejection under Order VII r.11 where no cause of action is pleaded – Plaintiff cannot sue on transactions between other parties.
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18 September 2009 |
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Quantified damages should not inflate pecuniary jurisdiction when taxing filing fees; Taxing Master's bill revised accordingly.
Advocates' costs – Taxation – Whether quantifiable damages in a plaint affect pecuniary jurisdiction for filing fees; Taxing Master's error in using total claimed sum including damages; Revision of taxed bill; Application for stay considered moot.
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9 September 2009 |
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8 September 2009 |
| August 2009 |
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A petition to appoint an arbitrator over lease (landlord–tenant) disputes falls within the Land Division's exclusive jurisdiction and not the Commercial Division.
Arbitration clause in lease – whether petition to appoint arbitrator falls under Commercial Division or Land Division jurisdiction Jurisdiction – exclusive land jurisdiction under Land Act s.167 and Land Disputes Courts Act (preamble, s.2, s.37(e)) Commercial case test – must be civil and of commercial significance (connection with buying/selling of goods/services) Separability of arbitration clause does not automatically confer commercial-court jurisdiction for land disputes
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28 August 2009 |
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24 August 2009 |
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Court directs judgment debtors to show cause for committal for breach of consent settlement; singular drafting error held immaterial.
Civil procedure — Execution of consent settlement — Order XXI r.35 CPC — Committal to civil prison for non‑payment — Joint and several liability — Drafting error in decree (singular "Defendant") immaterial — Discretion to issue warrant vs show‑cause hearing.
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18 August 2009 |
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Court ordered consolidation of two related commercial suits involving the same cause of action and guarantors.
Civil procedure – Consolidation of suits – Identity of cause of action – Joinder of guarantors with principal debtor – Order VIIIA Rule 4; Order II Rules 3(1),(2) and 6 CPC (Cap 33 RE 2002).
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17 August 2009 |
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14 August 2009 |
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13 August 2009 |
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5 August 2009 |
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Application for interim relief pending international arbitration struck out for failure to invoke the Arbitration Act.
Arbitration — international arbitration — interim/conservatory measures — applications for court assistance must be brought under the Arbitration Act; Civil Procedure Code omnibus provisions insufficient — incorrect procedural citation amendable but non‑citation of Arbitration Act fatal; Government Proceedings Act — suits against government instituted against the Attorney‑General.
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5 August 2009 |
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5 August 2009 |
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A missing advocate signature on a defence is procedural and may be cured by endorsement; pleading not struck out.
Civil procedure – Pleadings – Advocate’s signature required by Order VI r.14 – Verification, date and place required by Order VI r.15(3) – Denials and evasiveness under Order VIII r.3–4 – Procedural defects curable by endorsement/amendment – Striking out as extreme remedy.
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5 August 2009 |
| July 2009 |
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Court enforces arbitral award but reduces arbitrator’s excessive interest award to the contractually agreed rate.
Arbitration enforcement — jurisdiction to hear show-cause challenge to filed award; limitation not a bar where notice to show cause issued; section 16 Arbitration Act — setting aside award requires misconduct by arbitrator or proof award improperly procured; arbitrability — arbitrator’s primary jurisdiction to rule; arbitrator exceeded powers by substituting contractual interest rate — court may correct/substitute rather than set aside; award executed as court order; costs each party bears own costs.
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28 July 2009 |
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28 July 2009 |
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Court granted extension of time and stayed execution where appeal was struck out due to a defective decree and counsel acted diligently.
Civil procedure — extension of time to file notice of appeal — defective decree — appeal struck out on technical ground; stay of execution pending appeal — Order XXXIX Rule 5(2)–(4), Rule 35(1); sections 93 & 95 CPC; Law of Limitation Act s.21(2)–(3) (exclusion of time) — discretion to grant relief where party acted diligently.
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23 July 2009 |
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Court expunged specified offensive paragraphs of a counter-affidavit but refused to strike it out; preliminary objection dismissed.
Civil Procedure – Affidavits – Order XIX Rule 3(1) CPC – affidavits confined to facts within deponent's knowledge; legal arguments, conclusions and prayers impermissible. Originating summons – affidavits are subject to same statutory requirements as other applications. Preliminary objections – objection to defective counter-affidavit is maintainable; offensive paragraphs may be expunged rather than striking out entire affidavit. Verification – qualified verification acceptable as to remaining paragraphs after expungement.
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10 July 2009 |
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Application to set off appeal costs against decretal costs and to pay by installments dismissed; consent and timely taxation required.
Set-off of costs; mutual debts; requirement for lodged/taxed bill of costs; Order XX Rule 11(2) CPC — payment by installments requires decree-holder's consent; time limits under Limitation Act; execution proceedings; refusal to entertain suo motu review of underlying decree.
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3 July 2009 |
| June 2009 |
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Bill of costs dismissed as time-barred and for non-compliant written submissions lacking preparer’s endorsement.
Civil procedure – Bill of costs – time bar under Law of Limitation Act (Item 21, Part III) – application dismissed as time-barred. Advocacy practice – Advocates Act s.44(2) – written submissions must bear name of preparer/endorser; non-compliance renders submissions defective. Procedural consequence – failure to respond to duly served legal objections permits court to uphold objections and dismiss application.
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25 June 2009 |
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22 June 2009 |
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Proceedings stayed: suit found res subjudice due to earlier pending case over same registered trade mark.
Civil Procedure – res subjudice (section 8 Civil Procedure Act) – trademark disputes – whether matters are directly and substantially the same – assignment of trade mark – registration of assignment under Trade and Service Marks Regulations – preliminary objection and disputed facts (Mukisa Biscuits principle).
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22 June 2009 |
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Omission of identification in a jurat breaches the Oaths and Statutory Declarations Act and renders the affidavit incurably defective.
Evidence Affidavits Jurat of attestation Oaths and Statutory Declarations Act (s.10) Mandatory form and identification of deponent; non-compliance renders affidavit incurably defective. Procedure Preliminary objection Competency of application supported by defective affidavit. Notaries Public and Commissioner for Oaths Act Place and date in jurat insufficient to cure absence of identification clause.
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22 June 2009 |
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Court lacks jurisdiction to grant interim injunctions before a dispute is submitted to arbitration; petition struck out with costs.
Arbitration — Interim/conservatory measures — Whether Court may grant interlocutory injunctions before submission to arbitration — Section 3 Arbitration Act; Rule 5 Arbitration Rules. Jurisdiction — Petition premature in absence of pending arbitral proceedings. Rule‑making — Section 20 vests regulatory power in Minister, not Court. Petition struck out with costs.
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17 June 2009 |
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17 June 2009 |