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Citation
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Judgment date
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| March 2016 |
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31 March 2016 |
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Failure to deliver contracted premises is breach; loss of business requires strict proof, but general damages awarded.
Contract/Lease – breach – failure to deliver leased premises as agreed – burden on preponderance of probabilities.* Damages – distinction between specific (loss of business/profit) and general damages – specific damages must be specifically pleaded and strictly proved.* Interest – interest on general damages payable from date of judgment (court discretion for pre-judgment interest on special damages)
Evidence – admissibility/use of judge’s handwritten notes where electronic recording is missing with parties’ consent
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26 March 2016 |
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An award letter alone did not create a binding procurement contract; goods held in temporary storage, so plaintiff's claims dismissed.
Procurement law – formation of contract – award letter/letter of intent versus formal contract; Public Procurement Act s55 and ITB clauses requiring contract signing and performance security – effect on contractual liability; Sale of Goods – delivery marked temporary and lack of acceptance; damages require a binding contract or acceptance.
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18 March 2016 |
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An unconditional withdrawal bars refiling the same application without leave; application struck out and costs awarded.
Civil procedure – Order XXIII r.1(3) CPC – effect of unconditional withdrawal – bar to re-institution without leave; applicability to applications as well as suits; substance over form — identical relief despite different phrasing; preliminary objection – striking out application; pleadings and affidavits — oral assertions at hearing cannot substitute omitted averments; costs — consequences of withdrawing a preliminary point of objection (3/4 costs ordered).
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18 March 2016 |
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Court found mortgage discharge fraudulent; plaintiff awarded judgment for outstanding loan, interest, restoration of mortgage and costs.
Banking law – Mortgage – Alleged fraudulent discharge of mortgage; forgery of discharge documents; burden of proof of repayment; entitlement of secured creditor to rectification of land register and recovery of outstanding loan with interest; alternative remedies of eviction and sale.
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18 March 2016 |
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Lack of arbitrator jurisdiction can amount to misconduct under s.16, but proving it requires a full hearing, not a preliminary objection.
Arbitration – Jurisdiction – Whether arbitrator’s lack of jurisdiction amounts to misconduct or improper procurement under s.16 of the Arbitration Act; Preliminary objection – When jurisdictional challenges require substantive hearing rather than disposal at preliminary stage; Arbitration awards – Effect of adoption/registration as court decree and whether such awards remain open to setting aside.
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18 March 2016 |
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Application dismissed: claimant lacked authority to sue for the company and the earlier order was ex parte as to NICOL.
Commercial procedure – Consent versus ex parte orders – order valid as consent between petitioners and CMSA but ex parte as to absent company; Company law – derivative and representative actions – requirement of board/member authority to sue in company’s name; Civil Procedure – remedy to set aside ex parte decree (Order IX r.13 CPC) and court’s power to enlarge time (s.93 CPC) – merits not determined where claimant lacked authority.
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18 March 2016 |
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Application by purported chairman to sue in company’s name was dismissed for lack of authorisation; orders against company were ex parte.
Company law – authority to sue – derivative v personal actions; Foss v Harbottle; consent order v ex parte order; requirement of board/member resolution to litigate in company’s name; procedure for setting aside ex parte orders and extension of time (not adjudicated due to lack of authorisation).
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18 March 2016 |
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Court permits amendment and re‑verification of defective witness statement; affidavit rules do not automatically apply.
Commercial Division procedure – witness statements vs affidavits – jurat requirements – verification and statement of truth – court’s inherent power to order amendment/re‑verification of defective witness statements – admissibility under Evidence Act (hearsay).
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17 March 2016 |
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Adjournment sine die without an application within six months mandates dismissal under Rule 47; each party bears own costs.
Commercial Division — Adjournment sine die and stays — High Court (Commercial Division) Procedure Rules 2012, Rule 47 — Mandatory dismissal where no application within six months — Purpose: curb abuse of adjournments — Costs: each party to bear own costs where both to blame.
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16 March 2016 |
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Where a suit ends on a preliminary objection, the Taxing Master must exercise discretion; instruction fee reduced from 3% to 1.5%.
Advocates' remuneration – taxation – instruction fees – scales under GN No. 515 of 1991 – discretionary nature of taxation – applicability of scales to matters decided on preliminary objection – when court may interfere with Taxing Master’s award.
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15 March 2016 |
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Court stayed sale of allegedly fraudulently mortgaged properties and allowed applicants to sue to establish title.
Civil procedure – Objection to attachment (Order XXI Rule 57) – Court empowered to investigate disputed ownership and grant interim protection where fraud alleged; stay of sale pending determination
Order XXI Rule 62 – Objectors permitted to institute suit to establish title; bank may retain title deeds and maintain mortgages pending final determination
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15 March 2016 |
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Wrong citation of enabling provisions renders an application to extend time for filing witness statements incompetent and struck out.
Extension of time – filing of witness statements – rule 49(2) High Court (Commercial Division) Procedure Rules prescribes time – rule 2(1) requires resort to CPC where Rules silent – section 95 CPC (inherent jurisdiction) is proper provision for extension – section 93 CPC and section 14 Limitation inapplicable – wrong citation of enabling provision renders application incompetent.
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15 March 2016 |
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The applicant proved unpaid contract invoices and recovered principal, general damages, post-judgment interest and costs against the respondent.
Commercial contract – unpaid invoices for security services – proof by duplicate invoices raised in ordinary course of business
Evidence – onus of proof – failure to tender pleaded annextures (deposit slips/receipts) is fatal to defence
Remedies – award of principal, general damages for consequential loss, refusal of unpleaded/prejudgment bank-rate interest, grant of post-judgment interest at court rate and costs
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14 March 2016 |
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Applicants granted leave to defend a summary suit after affidavits disclosed partial repayment and discrepancies in the claimed debt.
Civil Procedure — Order XXXV (summary procedure) — Leave to defend — Order XXXV Rule 3 requirements — affidavits must disclose prima facie/arguable defence. Summary suits — admission of loan but partial payment and discrepancies can constitute arguable defence
Limitation — 21 days for application for leave under Law of Limitation Act (First Schedule, Part Three)
Costs — follow the cause where leave to defend is granted
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11 March 2016 |
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Applicants granted leave to defend summary suit under Order XXXV after showing an arguable defence and partial payment.
Order XXXV Civil Procedure Code – summary procedure on negotiable instruments – leave to defend – affidavits must disclose prima facie defence (consideration/other facts) – 21‑day limitation to apply – partial payment and disputed account amount amounting to arguable defence.
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11 March 2016 |
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Petition for company amalgamation dismissed for failure to notify and obtain creditors' approval as required by law.
Company law – amalgamation/arrangement – Sections 229 & 231 Companies Act – requirement to propose arrangement to creditors – transfer of liabilities – creditors’ right to notice and to be heard – court must be satisfied of substantial compliance, good faith and fairness before sanctioning scheme.
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2 March 2016 |