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Citation
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Judgment date
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| December 2018 |
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Borrower liable for unpaid overdraft; public auction sale not shown to be improperly undervalued; third‑party claim dismissed.
Banking law – overdraft facility – existence and breach of facility letter; Security – third‑party legal mortgage; Sale by public auction – presumption that auction price is best obtainable absent foul play; Valuation evidence – need for contemporaneous proof of market value; Relief – recovery of outstanding loan, contractual interest pre‑judgment, statutory interest post‑judgment; Third‑party claim – failure for lack of evidence.
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14 December 2018 |
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Borrower liable for unpaid overdraft; public auction sale upheld absent proof of undervalue or foul play.
Commercial law – loan/overdraft facility – existence and breach; mortgage security – third party mortgagor; sale by public auction – duty to obtain best price; evidentiary requirement for valuation; interest on decretal sums; dismissal of third-party claim.
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14 December 2018 |
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Unopposed winding-up petition granted; liquidator appointed with remuneration from sale proceeds; no costs ordered.
Companies law – Winding-up under section 281 – Unopposed petition – Interim provisional liquidator unnecessary – Appointment of liquidator from proposed list – Remuneration from assets proceeds – Service on Registrar of Companies – No order as to costs.
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14 December 2018 |
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Applicants lacked standing and failed to show a dispute under section 38(1) CPC; receivership challenge dismissed with costs.
Civil Procedure – section 38(1) CPC – scope limited to parties or their representatives and disputes about execution/discharge/satisfaction of a decree; Locus standi – company separate legal entity; Directors must prove representative capacity; Enforcement of debenture rights – creditor may appoint receivers independent of decree enforcement; Challenge to receivership – by suit, not section 38(1) application.
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13 December 2018 |
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Court refused extension to file another witness statement, struck out sole evidence and dismissed the suit for want of evidence.
* Commercial Procedure Rules – evidence-in-chief by witness statement – duty under Rule 56(1) to cause witness to attend for cross-examination.
* Rule 56(2) – failure to appear for cross-examination – striking out witness statement absent exceptional reasons.
* Proof of service – need for return of summons and affidavit (Order XVI r.8 & Order V r.16 CPA); submissions at the bar are not evidence.
* Extension of time – discretionary relief requiring sufficient cause; prejudice to opposing party considered.
* Consequence – striking out sole witness statement may lead to dismissal for lack of evidence (Order XVII r.3 CPA).
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13 December 2018 |
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Plaintiff breached a lease after takeover; defendant lawfully repossessed equipment and recovered arrears, interest, and costs.
* Contract law – Lease takeover/assignment – validity of commitment letter and incorporation of rental schedules; * Breach of contract – non-payment of rentals and part-payment obligation; * Repossession – express contractual right to repossess equipment without further notice on default; * Remedies – award of arrears, commercial interest pre-judgment, court rate post-judgment, surrender of leased equipment, and costs; * Evidence – documentary proof and correction of typographical error.
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10 December 2018 |
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Failure to annex certified copies of the arbitration submission and award renders the petition incompetent and is struck out with costs.
* Arbitration — Arbitration Rules, GN No. 427 of 1957 — Rule 8 — Mandatory requirement to annex certified copy of submission and award to petition.
* Civil procedure — Competence of proceedings — Failure to comply with mandatory procedural requirements renders petition incompetent.
* Relief — Petition challenging arbitral award — struck out with costs for non-compliance with Rule 8.
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7 December 2018 |
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The applicant was entitled to arrest and detain the respondents for failing to satisfy a money decree.
* Civil procedure – execution of decree – arrest and detention in civil prison as a mode of execution under Section 42 of the Civil Procedure Act.
* Order XXI Rule 39 – factors to consider before ordering arrest: means to pay, concealment, preference to other creditors, likelihood of absconding.
* Attachment – sufficiency of information on assets and inability to attach property of non-parties.
* Enforcement – no statutory requirement to exhaust attachment and sale before ordering arrest and detention.
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7 December 2018 |
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Registered share transfer governs dividend entitlement; private arrangement void and dividends wrongly withheld.
Company law shareholding proof; enforceability of private agreement vs registered company returns; entitlement to dividends only as declared; burden to plead and strictly prove special damages; withholding dividends to offset transferor's tax liability unlawful.
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7 December 2018 |
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Leave to sell goods under a warrant of distress will not be granted during a pending administration petition absent compelling circumstances.
* Companies Act s.249(1)(c) – moratorium on proceedings and distress during administration petition – leave of court required to proceed; * Leave to proceed – discretionary, preserves status quo and collective creditor interests; * Perishability/storage claims – require compelling justification to lift moratorium; * Authorities: Re Atlantic Computer Systems; Re Rhoda Waste Disposal; principles of administration priority.
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7 December 2018 |
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Claims against directors/shareholders dismissed where plaintiff failed to establish grounds to lift the corporate veil.
Company law – separate legal personality – Salomon principle – corporate veil – lifting/piercing corporate veil requires special circumstances and sufficient evidence; failure to adduce such evidence precludes personal liability of directors/shareholders.
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7 December 2018 |
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Failure to file witness statements within Rule 49(2) led to dismissal for want of prosecution; Rule 50 and overriding objective did not rescue late filing.
Civil procedure — Commercial Division Rules — Rule 49(2) — Requirement to file witness statements within seven days after failed mediation; non-compliance leads to striking out; Rule 50 not a remedy outside final pre-trial conference; failure to file witness statements amounts to failure to prosecute; dismissal for want of prosecution; laches and overriding objective considered.
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5 December 2018 |
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A court-recorded deed of settlement under Order XXIII r.3 CPC replaces the prior decree, rendering review extension futile.
Civil procedure – Extension of time to file review – Compromise recorded under Order XXIII r.3 CPC – Effect of deed of settlement on prior decree – A recorded compromise replaces and extinguishes earlier decree; court cannot grant extension to review a non-existent decision; discretion to extend time and illegality exception noted.
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4 December 2018 |
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Petition to set aside arbitral award dismissed as time-barred; no extension of time granted.
* Arbitration – setting aside award under s.16 Arbitration Act – procedural grounds and time limits.
* Limitation – computation of time – application of s.21(2) (time excluded while prosecuting another civil proceeding) versus s.22.
* Civil procedure – requirement to apply for extension of time; court order permitting filing subject to laid down procedure does not imply leave to file out of time.
* Jurisdictional and misconduct allegations against arbitrator – merits not considered when petition is time-barred.
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3 December 2018 |
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Court granted preservatory injunction to protect PV facility pending ICC arbitration, finding the facility integral to the disputed EPC agreement.
* Arbitration – interim and conservatory measures – Court’s power to grant preservatory orders pending arbitration – application of ICC Rules permitting local judicial interim relief.
* Arbitration – subject matter – whether works/equipment produced under EPC Agreement constitute subject matter requiring preservation.
* Interim relief – Atilio v Mbowe criteria (serious triable issue, irreparable harm, balance of convenience) applied in aid of arbitration.
* Civil procedure – interlocutory determination limited; merits (breach) not to be decided when granting preservatory relief.
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3 December 2018 |
| November 2018 |
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Oral variation of a written hire‑purchase agreement is inadmissible; non‑payment justified supplier’s repossession, suit dismissed.
Hire Purchase agreement – contractual instalments – alleged oral variation inadmissible under s.101(1) Evidence Act – non‑payment of agreed instalments – supplier’s right to repossess under contractual clause; special damages require evidential proof; ex parte proceedings – no order as to costs.
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30 November 2018 |
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Leave granted to appeal dismissal under rule 29(3); rule 29(4) does not preclude leave under section 5(1)(c).
Appellate Jurisdiction Act s5(1)(c) — leave to appeal from High Court; High Court (Commercial Division) Procedure Rules — rule 29(3) dismissal and rule 29(4) setting aside; timing of preliminary objections; construction of "decision/order" to include rulings; leave to appeal granted where arguable points of law exist.
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30 November 2018 |
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Leave to appeal granted where supporting affidavit raised arguable illegalities despite objections about party status and futility.
* Civil procedure – leave to appeal – grantable where intended appeal has reasonable prospects or proceedings show disturbing features; affidavit must disclose arguable illegalities.
* Parties and locus – whether a non-party to original proceedings may seek leave to appeal; challenges to right to appeal are matters for appellate determination.
* Preliminary objections – must be notified with particulars before being entertained.
* Affidavit practice – objections to paras containing law/argument may be raised, but failure to expunge does not necessarily defeat leave.
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28 November 2018 |
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A review filed after 30 days from the order's extraction is time‑barred and dismissed with costs.
* Civil procedure – Review – Limitation: 30‑day period for review runs from date the order is extracted (prepared), not from when the party collected the drawn order.
* Limitation law – Section 19(2) Law of Limitation Act: days for obtaining copy excluded only where applicable facts exist; not automatic if extraction date is earlier.
* Preliminary objections – can be entertained if raised before hearing and no prejudice; additional points in submissions permissible where party can reply.
* Procedural rules – Formatting under Rule 19(1) is administrative and not a pure point of law requiring evidence for determination.
* Order XLII Rule 9 CPC – prevents endless re‑review but was not determinative here; time bar was dispositive.
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28 November 2018 |
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Court ordered amendment for misdescribed parties and directed plaintiff to pay defendant’s defence costs.
* Commercial law – preliminary objections – misjoinder and misdescription of parties – amendment of pleadings permitted to cure misdescription; * Civil procedure – Order 1 Rules 9 & 10 CPC – court’s power to add necessary parties but amendment preferable where primary defendant misdescribed; * Procedure – relief against non‑party requires joinder and a hearing; * Jurisdiction and arbitration objections raised but resolution deferred pending corrected pleadings.
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28 November 2018 |
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Summary judgment granted after defendants' defective leave applications struck out; bank awarded outstanding loan, interest and taxed costs.
Summary judgment – failure to obtain valid leave to appear and defend – Order XXXV r.2(2)(a) Civil Procedure Act – Rule 68(c) High Court (Commercial Division) Procedure Rules – recovery of guaranteed loan principal and contractual/penal and post-judgment interest – costs taxed.
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26 November 2018 |
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Court allowed amendment to add Attorney General non-joinder and notice grounds, ordering amended petition filed and costs.
* Arbitration – setting aside arbitral award – amendment of petition to add grounds of Attorney General non-joinder and failure to serve notice; * Civil procedure – amendment of pleadings – Order VI r.17 CPC and High Court (Commercial Division) Rules; * Government Proceedings Act – joinder/notice to Attorney General; * Amendment allowed where necessary to determine real controversy and without prejudice; * Costs and time for filing amended petition.
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15 November 2018 |
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A company shown by audited accounts and tax default to be unable to pay debts may be wound up under s.280(c).
Companies Act – winding up – inability to pay debts under s.280(c) – proof by audited financial statements and tax default; procedure – ex parte petition after advertisement and service; appointment of official receiver/liquidator; no costs ordered.
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14 November 2018 |
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Technical delay from a struck-out appeal justified extension of time to file appeal and obtain certified copies.
Extension of time – sufficient cause – technical delay caused by pursuing an appeal later struck out as incompetent due to unendorsed exhibits – discretion under Section 11(1) AJA – promptness and diligence required.
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14 November 2018 |
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Temporary injunction application struck out for failing to cite the correct statutory sub‑rule; costs awarded.
Commercial injunctions; Order XXXVII Rule 2(1) CPC; requirement to cite specific statutory provision; marginal notes not part of law; defective application; strike out with costs.
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13 November 2018 |
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Court refused to set aside dismissal where applicant repeatedly failed to appear and alleged a mistaken hearing time.
Commercial Division – Rule 43(2) High Court (Commercial Division) Procedure Rules GN 250/2012 – setting aside dismissal for want of prosecution – discretionary power – requires reason and justice – repeated non-appearance – mistake of hearing time insufficient without diligence.
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13 November 2018 |
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Extension of time refused because applicant failed to show sufficient cause and account for cumulative delays.
Extension of time – Law of Limitation s.14(1) & CPC s.95; requirement to show sufficient cause and account for each period of delay; no legal requirement to attach drawn order; counsel’s negligence and client’s lack of diligence not ordinarily sufficient cause; discretionary refusal where promptness not demonstrated.
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12 November 2018 |
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Unconditional leave to defend granted where applicants showed a bona fide triable issue over dishonoured cheques and consideration.
* Civil procedure – Summary procedure (Order XXXV) – Leave to appear and defend – Requirement of a bona fide triable issue; sham defence exception.
* Negotiable instruments/contract – Dishonoured cheques – Need to prove consideration in main trial where drawer not party to underlying contract.
* Arbitration – raised as a defence of premature suit but abandoned.
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6 November 2018 |
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Stay refused where claimed risk of double recovery was speculative and the issues form part of the defence, dismissing the application with costs.
* Civil procedure – Stay of proceedings – Whether pending administration of a debtor company justifies staying creditor’s suit – speculative risk of double recovery insufficient. * Guarantees/mortgages – Creditor’s right to pursue guarantors where borrower is under administration or insolvency proceedings. * Exercise of judicial discretion – Interlocutory stay refused where issues form part of defence and staying would delay justice.
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1 November 2018 |
| October 2018 |
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Application to stay proceedings for arbitration dismissed because arbitration clause did not cover the pleaded claims and involved non-parties.
Arbitration — stay of court proceedings under rule 18, Second Schedule Civil Procedure Code — timing (cut-off at settlement of issues) — scope of arbitration clause in Inter‑Creditor Loan Agreement — arbitration clause not applicable to claims under separate loan facility, mortgage and guarantee agreements — non-parties to arbitration clause — multi-party litigation and practicality of partial referral to arbitration.
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31 October 2018 |
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An application for leave to appeal is incompetent where the impugned ruling is interlocutory and appeals are barred by statute.
Appellate jurisdiction – interlocutory decisions – section 5(2)(d) Appellate Jurisdiction Act (Cap 141) – appeals barred where decision does not finally determine suit – no jurisdiction to grant leave to appeal where right of appeal is excluded.
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30 October 2018 |
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Court adjourned committal proceedings because a timely application for stay of execution to the Court of Appeal was pending.
Execution of decree – Committal proceedings under Order XXI r35(1) – Effect of pending stay of execution application to Court of Appeal under Court of Appeal Rules r11(3)–(4) – Adjournment to avoid prejudice.
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30 October 2018 |
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Attorney General may be joined in proceedings if the Attorney General considers the matter involves public interest or public property.
Attorney General Act — sections 6, 8(1)(f) and 17 — joinder/appearance in proceedings where matter involves public interest or public property; right of audience vs. right to be joined; procedural requirements under section 17(2).
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29 October 2018 |
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The respondent supplied a non‑conforming generator; the applicant recovered the purchase price and interest, transport and punitive claims denied.
Sale of Goods – non‑conforming goods – description and implied condition that goods correspond with description (s15); acceptance requires reasonable opportunity to inspect (s36) – delivery note insufficient to rebut non‑conformity; specific damages proved for purchase price; interest awarded; transport claim dismissed for lack of receipts; punitive and general damages declined.
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29 October 2018 |
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Default judgment for recovery of unpaid personal loan: principal, default interest and post-judgment interest awarded to the plaintiff.
Commercial law – Default judgment under rule 22(1) – Recovery of unpaid personal loan under Group Personal Loan Agreement – Declaration of breach – Award of principal, default interest (24% p.a.) from write-off date, post‑judgment interest (12% p.a.) and costs.
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24 October 2018 |
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Applicant failed to show sufficient cause for extension; Section 21(1) inapplicable and delay was due to inaction.
Limitation of actions – extension of time under s.14(1) Law of Limitation Act; computation of limitation – s.21(1) exclusion applies only where other proceedings prosecuted in a court incompetent for want of jurisdiction; taxation of costs – pending leave to appeal in a competent court does not bar filing; delays caused by laxity/inaction are not sufficient cause.
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23 October 2018 |
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Applicant not cheque-holder and raised bona fide triable issues; granted unconditional leave to defend in summary suit.
Civil Procedure – Summary procedure (Order XXXV) – Leave to appear and defend – Requirement to disclose facts to prove consideration for dishonoured bill – Defendant not holder of bills – Letter of undertaking insufficient to ground summary suit – Bona fide triable issues warrant leave to defend.
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23 October 2018 |
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Failure to produce the sole witness for cross-examination resulted in striking out evidence and dismissal of the suit with costs.
Civil procedure – Commercial Division – Rule 56(1) and (2) – duty to cause witness to attend for cross-examination – striking out witness statement – dismissal of suit where sole evidence is excluded.
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22 October 2018 |
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Court dismissed the plaintiff’s suit for failure to prosecute and attend final pre-trial conference, awarding costs to defendants.
Commercial Division — Failure to prosecute — Repeated non-attendance at final pre-trial conference — Dismissal under Rule 31(1)(a) of GN.250/2012; Costs awarded to attending defendants.
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22 October 2018 |
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Whether an applicant’s appeal and belief of lost jurisdiction justified extension to file a defence; application dismissed.
Civil procedure – extension of time to file defence – applicability of rule 20 of Commercial Rules versus section 93 CPC – effect of lodging notice of appeal on trial court's jurisdiction – requirement to account for each day of delay and demonstrate promptness.
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18 October 2018 |
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An affidavit whose jurat omits date and place renders the applicant's summary-procedure application incompetent and liable to be struck out.
* Evidence — Affidavit jurat — omission of date/place (and deponent identification) — renders affidavit incurably defective; cannot support application.
* Procedure — High Court (Commercial Division) Procedure Rules, GN No.250/2012, r.63 — power to strike out affidavits/applications that contravene law at any stage.
* Competence of application — summary-procedure application founded on defective affidavit is incompetent and struck out.
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18 October 2018 |
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A late filing of a witness statement after the Rule 49 deadline is impermissible; extension refused and costs awarded.
* Commercial Division — Rule 49 — Evidence-in-chief by witness statement — strict compliance required; late filing prohibited after prescribed period or court-ordered extension.
* Limitation law — Section 14(1) Law of Limitation Act not applicable to filing witness statements (they are neither appeals nor applications).
* Civil Procedure — Section 95 CPC/inherent jurisdiction — available to prevent abuse of process but requires proper engagement and demonstration of sufficient cause.
* Case management — Finality and certainty in filing witness statements; courts reluctant to permit belated filings that prejudice adversary preparation.
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16 October 2018 |
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A petitioner must show contractual connection to the suit and evidence of readiness before a stay for arbitration is granted.
* Arbitration Act s.6 — stay of proceedings pending arbitration — applicant must show the dispute is subject to the arbitration agreement.
* Arbitration — contractual connection — scope, parties and amounts must align with pleaded claim for arbitration clause to apply.
* Arbitration — readiness to arbitrate — mere filing of petition insufficient; affidavit or communications showing willingness required (authorities applied).
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15 October 2018 |
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Application supported by a supplementary affidavit violated mandatory CPC rules and was struck out for being incurably defective.
Civil procedure – Application under CPC – Order XLIII Rule 2 – requirement of affidavit (not supplementary affidavit); Amendment of process – amended document replaces original; Procedural compliance – failure to seek leave for additional affidavit fatal; Form and content of affidavits – argumentative or conclusory averments objectionable.
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12 October 2018 |
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A witness's voluntary refusal to attend is not an exceptional reason; the statement was struck and the suit dismissed.
* Commercial Procedure — evidence-in-chief by witness statement (Rule 49(1)) — witness must attend for cross-examination (Rule 56(1)); * Rule 56(2) — failure to appear for cross-examination leads to striking out statement unless 'exceptional reasons' shown; * 'Exceptional reasons' does not include a witness's voluntary unwillingness to testify; * Rule 2(2)/Order XVI summons cannot be used to override Rule 56(2) in such circumstances; * Order XVII Rule 3 — dismissal where plaintiff has no other evidence.
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11 October 2018 |
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Court refused belated additional and supplemental witness statements for inadequate justification; only case life span extension granted.
* Civil procedure – High Court (Commercial Division) Procedure Rules, Rule 49(1) & (2) – witness statements must be filed within seven days after mediation; post-deadline filings generally impermissible. * Discretion – court’s power to admit belated witness statements is limited and requires convincing justification to avoid unfairness and uncertainty. * Evidence – late additional or supplemental witness statements cannot be used to shore up weak case or to ambush opposing party.
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9 October 2018 |
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Failure to cite the specific sub‑rule granting jurisdiction (Rule 32(3)) renders the extension application incompetent and it is struck out with costs.
Civil procedure — Preliminary objection — Wrong or non‑citation of statutory provision — Requirement to cite specific section/sub‑rule conferring jurisdiction (Rule 32(3) High Court (Commercial Division) Procedure Rules) — Application incompetent — Strike out with costs.
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3 October 2018 |
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Applicants who paid the agreed settlement sum within the overall period satisfied the judgment; respondent must discharge mortgages and surrender title deeds.
Commercial law – settlement deed recorded as consent judgment – instalment schedule versus overall payment period – whether time is of the essence – default clause invocation – compliance with decree – discharge of mortgages and surrender of title deeds.
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3 October 2018 |
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Whether payment of the full settlement amount within the agreed overall period satisfied the deed despite late monthly instalments.
Contract / consent decree – settlement deed recorded as judgment – interpretation of time provisions – whether time is of the essence for instalments versus overall payment period – default clause activation – relief to enforce discharge of mortgages.
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3 October 2018 |
| September 2018 |
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Applicant failed to show irreparable harm; injunction refused and bank-order was improper against a non-party.
* Interim injunctions — requirements from Atilio v Mbowe — serious question, probability of success, irreparable harm, balance of convenience.
* Bank guarantees — unconditional advance payment guarantee — bank’s obligation to pay on first demand.
* Procedure — propriety of invoking Order XXXVII and Civil Procedure Code provisions against a non-party to the main suit.
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28 September 2018 |