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Citation
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Judgment date
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| December 2016 |
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Applicant's concession to a preliminary objection led to striking out with costs; counsel's oversight not a sufficient excuse.
Commercial procedure — costs follow the event; s.30(2) Civil Procedure Code — written reasons required to deny costs; counsel's oversight not a sufficient ground to deprive successful party of costs; compliance with rule 64 (counter-affidavit and skeleton arguments) justifies costs; application struck out with costs.
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22 December 2016 |
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Court upheld Taxing Officer’s discretion but reduced an excessive per‑item travel allowance and expunged late rejoinder.
Costs — Taxation — Advocates' Remuneration and Taxation of Costs Rules (1991) applicable where bill filed before repeal; rule 46 (one‑sixth) concerns costs of taxation only; rule 55(1) requires receipts but Taxing Officer has discretion; court may interfere where taxed amounts are manifestly excessive — substitution of fair flat rate permitted; procedural compliance with filing timetables mandatory (late rejoinder expunged).
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22 December 2016 |
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Court allowed partial review of taxation: separated attendance and printing disbursements, increased instruction fees to 6.5%.
Advocates' remuneration and taxation — scope of taxing officer's discretion; distinction between instruction fees and disbursements (attendance, travel, printing); proper application of percentage bands under Ninth Schedule; interpretation of 'principal sum' for taxation.
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22 December 2016 |
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A misnumbered counter-affidavit due to registry error is a curable technicality; the application is not uncontested.
* Civil procedure – misnumbered filings – counter-affidavit wrongly titled – whether misnumbering is fatal or curable under section 97 CPC and Article 107A(2)(e) – court’s duty to rectify registry errors and ensure accurate court records.
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20 December 2016 |
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Reported
Applicant granted leave to appeal over whether the leave-to-defend summary suit was filed under the correct sub‑rule.
Civil procedure – summary suits – leave to appear and defend – application under Order XXXV r.3(1)(b) v r.3(1)(c) – leave to appeal – test is whether there are prima facie grounds meriting Court of Appeal’s attention; interlocutory v final orders and appealability.
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16 December 2016 |
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Leave to appeal granted where a serious question exists whether the summary-suit defence application was brought under the correct CPC sub‑rule.
Civil procedure – summary suit – application to appear and defend – whether Leave to defend should be under Order XXXV r.3(1)(b) or r.3(1)(c) CPC; Leave to appeal – standard for grant – prima facie grounds/serious question meriting Court of Appeal's attention; Appealability – final vs interlocutory orders.
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16 December 2016 |
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Extension to file witness statements must be sought under CPC s.95 (inherent jurisdiction), not Limitation Act s.14; application struck out.
Commercial Procedure — Rule 49(2) HCCP Rules: seven‑day deadline for witness statements; Rule 2(1) — resort to CPC for lacunae; Limitation Act s.14 limited to appeals/applications; CPC s.95 (inherent jurisdiction) is proper basis for extension of time to file witness statements; applications founded on wrong provisions are struck out; "any other enabling provisions" is ineffectual.
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16 December 2016 |
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Expiry of an assigned speed track does not automatically oust jurisdiction; court may extend the schedule and not dismiss.
Civil procedure — Case management — Order VIIIA (speed tracks) — Expiry of assigned speed track does not automatically oust jurisdiction; court may extend or amend scheduling order suo motu; duty to seek departure shared by parties; procedural rules are handmaid of justice; Rules inapplicable to suits instituted before their commencement.
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16 December 2016 |
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Clerical date discrepancy on a Chamber Summons is a curable slip; court allowed amendment within a fortnight.
Civil procedure – Chamber Summons – discrepancy between date on summons and date on supporting affidavit – whether incurable defect – amendment permitted; procedural errors curable under Article 107A(2)(e).
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16 December 2016 |
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A mismatched date between a Chamber Summons and its supporting affidavit is a curable slip; amendment allowed within two weeks, no costs.
Civil procedure – Chamber Summons – Supporting affidavit date inconsistent with date on Chamber Summons – Whether defect incurable or curable by amendment – Amendment allowed where defect is a trivial, accidental slip; Article 107A(2)(e) Constitution applied; Court of Appeal authority on amendment of procedural notices relied upon.
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16 December 2016 |
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Adjudication board proceedings and foreign arbitral awards are not "suits" under CPC; res subjudice and res judicata do not apply.
* Civil Procedure — Res subjudice (s.8 CPC) — applies only to suits pending before courts as defined by the CPC; adjudication board proceedings are not "suits".
* Civil Procedure — Res judicata (s.9 CPC) — operates only where an earlier matter was decided by a court competent to try the subsequent suit; foreign arbitral awards are not automatically res judicata under CPC.
* Arbitration/Adjudication — Proceedings commenced by statement of claim or arbitration are not "suits" instituted by plaints and thus outside sections 8 and 9 CPC.
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15 December 2016 |
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Applicant obtained summons to show cause after court found respondent likely disobeyed clear restraining orders.
Contempt of court – alleged removal of restrained assets – proof by affidavit – clarity of restraining orders – expunged affidavit paragraphs not admissible – duty of counsel to inform clients of court orders – issuance of show-cause summons prior to committal or sentencing.
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10 December 2016 |
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Applicants' certificate of urgency dismissed; forgery allegations require forensic proof; matter to be fixed per court diary.
Urgency — Certificate of Urgency — matters requiring immediate attention; Allegations of forgery/fraud in civil proceedings — higher standard of proof; necessity of forensic/expert evidence to prove forged signatures; Judicial discretion on abridging procedure — urgency must be real and proportionate; Costs — in the cause.
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1 December 2016 |
| November 2016 |
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Applicant's bare claim of a witness's bereavement, without particulars or documents, failed to justify extension of time.
* Civil Procedure – extension of time under section 95 CPC – applicant must show sufficient reasons and account for every day of delay.
* Sufficiency of reasons – bereavement of witness – unsupported assertions insufficient; need dates and corroborating documents (death certificate, travel tickets) or witness affidavit.
* Evidence – affidavits must be updated and particularized; replication of a struck-out affidavit is inadequate.
* Procedural – ex parte application dismissed for want of sufficient material to justify enlargement of time.
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30 November 2016 |
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The applicant’s revision was struck out for citing the wrong statute, leaving the High Court not properly moved.
* Civil procedure – Revision jurisdiction – High Court’s power under Sections 43 and 44 of the Magistrates' Courts Act to revise civil and execution proceedings from Resident Magistrates’ Courts.
* Civil procedure – Distinction between Section 79 Civil Procedure Code (High Court-initiated revisions of finalized cases) and revisions under the Magistrates' Courts Act.
* Civil procedure – Requirement to cite proper enabling provisions – incorrect citation renders application incompetent.
* Execution law – Execution and garnishee orders from subordinate courts fall within reviewable "proceedings of a civil nature."
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23 November 2016 |
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An arbitrator may 'cause' an award to be filed by forwarding it (with records); absence of a petition does not invalidate filing.
Arbitration — Filing of award — Section 12(2) Arbitration Act — Rule 4 GN 427/1957 — no statutory requirement that arbitrator file by petition; 'causing' award to be filed satisfied by forwarding letter and delivery (DHL/courier) — notice of filing: remedy is service/re‑service or application.
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17 November 2016 |
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Advocate’s acute illness justified setting aside dismissal for want of prosecution and restoring the case.
Commercial procedure – setting aside dismissal for want of prosecution – sufficiency of cause – advocate’s illness (medical chit) – credibility and prior conduct – interest of justice to decide matters on merits – no prejudice, restoration ordered.
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16 November 2016 |
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Court restored a suit dismissed for want of prosecution where counsel’s documented illness constituted sufficient cause.
Commercial procedure — setting aside dismissal for want of prosecution — rule 43(2) High Court (Commercial Division) Procedure Rules — counsel’s sickness and medical certificate as sufficient cause — applicant’s prior conduct and absence of prejudice — restoration to register.
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16 November 2016 |
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An application to add necessary parties under Order I r.10(2) CPC is not time-barred by the Limitation Act; objection dismissed.
Civil procedure – Order I r.10(2),(4) CPC – addition of parties "at any stage" – Limitation Act inapplicable to such applications – preliminary objection dismissed with costs.
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14 November 2016 |
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Reported
Interrogatories that seek a party’s trial evidence are impermissible; no further answers required and the case proceeds.
Civil procedure – Interrogatories – Order XI r.9 CPC – Interrogatories must seek facts or admissions, not the evidence a party will adduce at trial; impermissible fishing expeditions; court may refuse further answers and proceed to trial.
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9 November 2016 |
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Interrogatories that seek a party's trial evidence are impermissible; objections on relevance/bona fides justified refusal of further answers.
* Civil procedure – Interrogatories under Order XI r.9 CPC – Scope limited to facts material to issues; cannot extend to evidence or contents of a party's brief. * Sufficiency/embarrassing answers – Objections on irrelevance or not exhibited bona fide may justify refusal to answer further. * Court may assess propriety of previously permitted interrogatories and refuse further answers if they seek trial evidence.
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9 November 2016 |
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Applicant’s withdrawal to avoid objection does not prevent costs; costs follow the event.
Companies — winding-up petition — withdrawal to preempt preliminary objection — costs follow the event; Civil Procedure — general rule that costs follow the event; absence of reply not a bar to entitlement to costs.
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7 November 2016 |
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Plaintiff's breach of mandatory pleading format led to striking out; legal‑personality dispute requires evidential determination.
Commercial Procedure Rules — mandatory pleading format (Rule 19(1)) — non‑compliance attracts rejection/striking out; Preliminary objection — issues requiring evidence (legal personality) not decidable on PO (Mukisa principle); Amendment under Order VI r.17 cannot pre‑empt a pending preliminary objection; Distinction between rejection at filing and striking out after filing.
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4 November 2016 |
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Suit for redemption dismissed as time‑barred; Power of Attorney registration not compulsory and locus standi issue rejected.
Limitation law – Redemption of land – Cause of action arises on repayment; 12‑year limitation (Law of Limitation Act, para 17 Part I) applies. Land Act s.120(1) – "any time" refers to discharge timing before sale, not commencement of cause of action. Registration of Documents Act – Power of Attorney not compulsorily registrable under s.8; registration optional under s.11; locus standi not defeated at preliminary stage absent evidence.
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4 November 2016 |
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Court granted extension to file witness statements, finding sufficient cause from inability to obtain public officers' names; summons refused.
* Civil procedure – extension of time – discretionary relief under Law of Limitation s.14(1), rule 49 High Court (Commercial Division) Procedure Rules and CPC s.95 – requirement to show sufficient cause. * Evidence – public officers’ transfers/reshuffles as a legitimate cause for delay in obtaining witness identities and statements. * Procedure – summons to a public official should not issue before witness statements/names are filed.
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4 November 2016 |
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Court stayed proceedings for arbitration after finding applicant willing to arbitrate and respondent failed to prove obstruction.
* Arbitration law – stay of court proceedings under section 6 of the Arbitration Act – existence of arbitration clause – requirement of willingness to arbitrate – burden to prove obstruction of arbitration. * Civil procedure – effect of correspondence (letters and emails) on arbitration timetables and readiness to arbitrate.
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3 November 2016 |
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Whether to stay court proceedings to enforce an arbitration clause under section 6 when parties dispute willingness to arbitrate.
* Arbitration Act s.6 – stay of court proceedings – enforcement of arbitration clause – requirements: willingness to arbitrate, absence of steps in court, convenience and justification for refusal.
* Arbitration clause (contractual) – disputes to be referred to arbitration before court action.
* Evidence – burden to prove obstruction of arbitration; email communication as notice and proof of receipt.
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3 November 2016 |
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Judge refused recusal where allegations arose from judicial decisions, not extrajudicial or personal bias.
Recusal — procedure for seeking judicial disqualification — affidavit by party versus counsel-led chamber application; Judicial bias — extrajudicial/personal bias required for disqualification; Objective test — reasonable apprehension of bias of a fair-minded informed observer; Judicial discretion — striking out preliminary objections and setting timetables not proof of bias; Professional conduct — advocates’ duty to use proper recusal procedure and not use affidavits to delay proceedings.
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2 November 2016 |
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Concession by respondent does not justify deferring costs; successful applicant entitled to immediate costs.
Civil procedure – costs – general rule that costs follow the event – application conceded by respondent – whether concession justifies ordering costs in the cause – applicability of costs rule to interlocutory applications.
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2 November 2016 |
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Respondent’s concession does not bar immediate costs; applicant awarded costs and ordered to file defence within fortnight.
Civil procedure – costs – general rule that costs follow the event; section 30(2) CPC – requirement to state reasons when departing from the rule; interlocutory applications – principle applies; concession by respondent does not automatically justify reserving costs to the main suit; award of costs to successful applicant; timetable for filing defence.
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2 November 2016 |
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Late amendment to pleadings to introduce forensic report refused for introducing new cause of action, prejudice and bad faith.
Civil procedure – amendment of pleadings; Commercial Division Rules r.24 – leave to amend after scheduling order; amendment introducing new cause of action (forgery) inconsistent with pleaded internet‑banking loss; prejudice and joinder of third party; bad faith and delay.
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1 November 2016 |
| October 2016 |
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Whether a faxed copy is admissible as secondary evidence when the original’s unavailability is not proved.
Evidence — Secondary evidence — Admissibility of faxed copy — Conditions under section 67(1)(a)(i) & (iii) Evidence Act — Notice to Produce — Insufficiency of counsel’s oral statement — Consistency with prior ruling.
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28 October 2016 |
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Court granted extension to file defence after earlier defence was struck out, holding sufficient reasons shown.
* Commercial procedure – extension of time to file written statement of defence – applicability of rule 20(2) where defence was filed in time but later struck out.
* Civil Procedure Code cited alongside Rules – wrong citation not fatal where relevant Rule is relied upon.
* Sufficient reasons – bona fides and prompt action after strike-out justify extension.
* Evidential objections – affidavit of counsel acceptable where overall explanation is satisfactory.
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27 October 2016 |
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Reported
Appeal to Commercial Division proper where subordinate civil suit involves contractual breach of confidentiality; preliminary objection overruled.
Commercial Division jurisdiction — Rule 69(1) — classification of 'commercial case' determined by substance of cause of action — breach of confidentiality arising from lending contract is commercial — absence of special register in subordinate court irrelevant — belated procedural objections may be struck out.
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26 October 2016 |
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Whether the Commercial Division may hear an appeal where the dispute arises from contractual confidentiality in lending.
Commercial Division jurisdiction – Meaning of "commercial case" – Whether subordinate court registration or title determines commercial nature; Contractual confidentiality in lending business qualifies as commercial; Preliminary objections must be timely and with reasonable notice; Late procedural points may be struck out.
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26 October 2016 |
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Conflict allegations against counsel require evidence; affidavits must disclose sources and must not contain prayers.
* Civil procedure – Preliminary objection – pure point of law principle (Mukisa Biscuit) – factual disputes requiring evidence not for determination at PO stage. * Conflict of interest – allegation that advocate is company secretary – burden on alleging party to prove conflict; not decidable on PO without evidence. * Affidavits – source of information and use of "I was informed" acceptable if source disclosed; affidavits must not contain prayers – offending paragraphs to be expunged. * Locus/hearsay – objections must be adequately argued to succeed.
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24 October 2016 |
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Dismissal of defendant's extension application entitled plaintiff to summary judgment; court awarded claimed monetary relief and costs.
* Civil procedure — Summary judgment — Order XXXV r.2(2)(a) CPC — effect of dismissal of application for extension to seek leave to appear and defend.
* Commercial Division procedure — rule 67(3) H.C. (Commercial Division) Procedure Rules, 2012 — proceeding to decree after summary judgment.
* Remedies — monetary awards in summary proceedings (overdue rental, business inconvenience, general damages, costs).
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20 October 2016 |
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Dismissal of defendant's extension application entitled plaintiff to summary judgment and monetary awards under Order XXXV r.2(2)(a).
* Civil procedure – Summary judgment – Order XXXV r.2(2)(a) CPC – entitlement to summary judgment where application for extension to seek leave to appear and defend dismissed.
* Commercial division procedure – High Court (Commercial Division) Procedure Rules r.67(3) – entry of decree following summary judgment.
* Remedies – contractual debt and damages for business inconvenience and general damages.
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20 October 2016 |
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Summary judgment granted after defendants failed to prosecute; plaintiff awarded debt, interest and costs.
* Commercial law – Summary judgment – Order XXXV rule 2(2)(a) & (b) CPC – entitlement to summary judgment where defendant fails to prosecute extension application.
* Procedure – Dismissal for want of prosecution – effect on defendant's right to appear and defend.
* Relief – Debt recovery – decretal sum, pre-judgment interest at base rate (20%), post-judgment interest (7%), and costs.
* Alternative remedies – receiver/possession not granted in absence of necessity.
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19 October 2016 |
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Affidavit statements based on others must disclose sources; offending paragraphs expunged and application allowed to proceed.
Contempt proceedings; Order XXXVII r.2(2) - detention for breach of injunction; Affidavit requirements - Order XIX r.3 - disclosure of sources for information; Defective affidavit paragraphs to be expunged, not necessarily whole affidavit; Amendment impermissible where it preempts a preliminary objection.
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17 October 2016 |
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Execution denied where the company named in the execution was not the party to the arbitration/decree.
Execution – identity of judgment debtor – requirement that party names correspond to those in original proceedings; arbitral award registration and challenges in execution proceedings; committal of company officers – corporate personality and lifting the veil; Order XXI procedure and affidavit requirement.
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17 October 2016 |
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A branch lacks juristic personality and was struck out; costs awarded to defendants; suit proceeds against the main defendant.
* Commercial Division – preliminary objection – impleading a branch of a company which lacks separate legal personality. * Corporate law – legal personality – branches have no independent juristic status and cannot sue or be sued. * Civil procedure – remedy for improper impleading – striking out the improperly impleaded party only. * Costs – costs follow the event under section 30 CPC; successful party on preliminary objection entitled to costs.
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3 October 2016 |
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A bank branch lacks separate legal personality; the branch was struck out and costs awarded to the successful objector.
Banking law – legal personality – Branches of banks lack independent legal personality and cannot sue or be sued; civil procedure – improper impleading – striking out branch only; costs – general rule that costs follow the event; party entitled to costs on successful preliminary objection.
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3 October 2016 |
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Court allowed interrelated omnibus application and extended commercial case lifespan, holding procedural time limits are flexible to prevent injustice.
Commercial procedure — Extension of time and enlargement of lifespan under High Court (Commercial Division) Rules — Permissibility of omnibus applications where prayers are interrelated — Procedural time limits as handmaid, not mistress, of justice — Expiry of lifespan does not automatically render suit incompetent.
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1 October 2016 |
| September 2016 |
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Oversight by the applicant's advocate is not sufficient cause to extend time to file a notice of appeal.
* Civil procedure — Extension of time to appeal — Requirement of sufficient cause before enlargement of time. * Appellate practice — Oversight, laxity or ignorance of the law by counsel does not amount to sufficient cause. * Rules of court — Must prima facie be obeyed; court needs material to exercise discretion to extend time. * Relevant authorities: Ratman v Cumarasamy; Calico Textile Industries Ltd; Fortunatus Masha cited.
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30 September 2016 |
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Execution application improperly brought and dismissed where the decree had been adjusted and satisfied by payment.
Execution of decree — procedural compliance with Order XXI Rule 10(2) (tabular form and specifying mode of execution); improper citation of enabling provisions; omnibus applications (combining show-cause and arrest) are defective; execution barred where decree was adjusted and satisfied by consent/payment; remedy aggrieved party is appeal.
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21 September 2016 |
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A temporary injunction under Order XXXV/XXXVII cannot be sought against persons who are not parties to the suit.
Civil procedure — Temporary injunction — Order XXXV/XXXVII Rule 2(1) Civil Procedure Code — injunctions directed at the defendant only — injunction cannot be issued against strangers to the suit — preliminary objection upheld; non-parties struck out.
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15 September 2016 |
| August 2016 |
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A disputed statutory interpretation is not a manifest error for review; appeal, not review, is the proper remedy.
Companies law; Insurance regulator v. financial creditor — whether statutory demand under s.280( a) applies to Commissioner of Insurance; distinction between s.280 and s.281 procedures; manifest-error review standard; appeal vs review; insufficiency of skeleton arguments for deciding merits.
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3 August 2016 |
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Reported
Review denied: whether the insurance regulator is a 'financial creditor' under Companies Act is a debatable legal issue, not a manifest error.
Companies law / insolvency – whether statutory regulator (Commissioner of Insurance) is a ‘financial creditor’ obliged to issue 21‑day statutory demand under s.280(a) – scope of review: manifest error apparent on face of record vs. debatable point of law; procedural sufficiency of skeleton arguments vs. full written submissions.
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3 August 2016 |
| July 2016 |
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Ex parte decree set aside where defective service, publication misstatement and inconsistent process affidavits constituted "special circumstances".
Civil procedure — service of process — substituted service by publication — misstatement of address in publication — inconsistent process-server affidavits — "special circumstances" under Order XXXV r.4/Order IX r.13(1) to set aside ex parte decree.
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25 July 2016 |