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238 judgments found.
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December 2018
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
— Relief — recovery of outstanding loan, contractual interest pre‑judgment, statutory interest post‑judgment
— Sale by public auction — presumption that auction price is best obtainable absent foul play
— Security — third‑party legal mortgage
— Third‑party claim — failure for lack of evidence
14 December 2018
Borrower liable for unpaid overdraft; public auction sale upheld absent proof of undervalue or foul play.
Commercial law — loan/overdraft facility — existence and breach
Commercial law — mortgage security — third party mortgagor
Commercial law — sale by public auction
— dismissal of third-party claim
— duty to obtain best price
— evidentiary requirement for valuation
— interest on decretal sums
14 December 2018
Unopposed winding-up petition granted; liquidator appointed with remuneration from sale proceeds; no costs ordered.
Company law — Companies law
— Interim provisional liquidator unnecessary
— Appointment of liquidator from proposed list
— No order as to costs
— Remuneration from assets proceeds
— Service on Registrar of Companies
— winding up
14 December 2018
Applicants lacked standing; section 38(1) CPC inapplicable; receivership challenge requires a suit — application dismissed.
Commercial law
— Execution — Application under section 38(1) CPC: applicant must be a party or representative and dispute must relate to execution, discharge or satisfaction of the decree — Civil Procedure Code s 38(1)
— Receivership — Appointment under a debenture independent of court execution — Challenge to receivership requires a separate suit (not an application under s38(1) CPC)
13 December 2018
Court struck out sole witness statement and dismissed suit where no proof of service or exceptional reasons existed.
Civil procedure — witness statements
13 December 2018
Plaintiff breached a lease after takeover; defendant lawfully repossessed equipment and recovered arrears, interest, and costs.
Contract law
— breach of contract — non-payment of rentals and part-payment obligation
— evidence — documentary proof and correction of typographical error
— Lease takeover/assignment — validity of commitment letter and incorporation of rental schedules
— Remedies — award of arrears, commercial interest pre-judgment, court rate post-judgment, surrender of leased equipment, and costs
— Repossession — express contractual right to repossess equipment without further notice on default
10 December 2018
Failure to annex certified copies of the arbitration submission and award as required by Rule 8 renders the petition incompetent and struck out.
Arbitration — challenge to arbitral award — Annexure requirement — Certification of submission and award — Rule 8, Arbitration Rules GN No. 427 of 1957
Civil procedure — review of arbitral award — Remedy — Striking out for procedural non‑compliance — Costs awarded
7 December 2018
The applicant was entitled to arrest and detain the respondents for failing to satisfy a money decree.
Civil procedure
— Enforcement — no statutory requirement to exhaust attachment and sale before ordering arrest and detention
— 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
7 December 2018
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.
7 December 2018
Application to sell goods attached for tax recovery was dismissed because the administration moratorium must preserve the status quo.
Company law — administration orders
— Moratorium on proceedings — Leave under s249(1)(c) to sell goods attached under warrant of distress pending administration petition
— Preservation of status quo — Court discretion, timing of leave and seriousness of company’s conduct
7 December 2018
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
7 December 2018
Late, unpermitted filing of witness statements under rule 49(2) justified dismissal for want of prosecution.
Civil procedure
— Filing out of time — Extension of time and late filings — Late filing without prior leave
— Overriding objective — not available to cure non‑compliance with mandatory procedural provisions
— witness statements — Filing of witness statements after failed mediation
5 December 2018
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
— 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
4 December 2018
Petition to set aside an arbitral award was dismissed as time‑barred; court did not reach the merits.
Arbitration — Setting aside arbitral award — limitation period — Law of Limitation Act (s.21(2), s.22)
Civil procedure — extension of time — Compliance with a limited extension order
Limitation law — section 21(2) exclusion — Application of s.21(2) versus s.22 of the Law of Limitation Act
3 December 2018
Court granted conservatory injunction preserving a contractual PV facility pending ICC arbitration, rejecting respondent's objections.
Arbitration
— Interim/conservatory measures — power of local courts to preserve subject matter of arbitration — Arbitration Act
— subject matter — whether works/equipment produced under EPC Agreement constitute subject matter requiring preservation — Preservation to prevent nugatory arbitration
3 December 2018
November 2018
Oral variation cannot alter written hire‑purchase terms; repossession for unpaid instalments justified; claimed damages unproven.
Commercial law — Hire‑purchase agreements — Repossession rights — Supplier entitled to repossess for non‑payment under express clause
Damages
— Special damages
— unsupported assertions insufficient
Evidence — Parol evidence rule — Written contract
30 November 2018
Leave granted to appeal dismissal under rule 29(3); rule 29(4) does not preclude leave under section 5(1)(c).
Appellate practice — Appellate jurisdiction act s.5(1)(c)
— leave to appeal from High Court
— leave to appeal granted where arguable points of law exist
— timing of preliminary objections
30 November 2018
Leave to appeal granted where supporting affidavit raised arguable illegalities despite objections about party status and futility.
Civil procedure — Affidavit practice — objections to paras containing law/argument may be raised, but failure to expunge does not necessarily defeat leave
Civil procedure — Leave to appeal — grantable where intended appeal has reasonable prospects or proceedings show disturbing features
Civil procedure — Parties and locus
— challenges to right to appeal are matters for appellate determination
— whether a non-party to original proceedings may seek leave to appeal
Civil procedure — Preliminary objections
28 November 2018
Whether a review is time‑barred when the drawn order was extracted on the day of judgment.
Civil procedure
— Court rules — Non‑compliance with formatting (Rule 19(1)) is administrative and not a pure point of law
— Preliminary objections — Late‑raised point in submissions may be considered if the other party is notified and given opportunity to reply — Permissible if no prejudice and opportunity to respond
— review applications — Time limit — Law of Limitation Act s.19(2)
28 November 2018
Court ordered amendment of plaint for misdescription/misjoinder and required plaintiff to pay defendant's defence costs.
Arbitration — contractual arbitration clause — Prematurity of suit for failure to attempt amicable settlement under contractual dispute resolution clause
Civil procedure — Cause of action — sufficiency of plaint and annexures to show cause of action — Four‑corners rule in assessing plaint
Civil procedure — Joinder of parties
— Order I r.9 & Order VII CPC
— Third‑party or court‑initiated impleadment
28 November 2018
Summary judgment granted after defendants' defective leave applications struck out; bank awarded outstanding loan, interest and taxed costs.
Civil procedure — Summary judgment
26 November 2018
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
Civil procedure — Government Proceedings Act
— Amendment allowed where necessary to determine real controversy and without prejudice
— Costs and time for filing amended petition
— joinder/notice to Attorney General
15 November 2018
A company shown by audited accounts and tax default to be unable to pay debts may be wound up under s.280(c).
Civil procedure — Procedure
— appointment of official receiver/liquidator
— ex parte petition after advertisement and service
— no costs ordered
14 November 2018
The applicant was granted extension after an appeal was struck out due to exhibits not endorsed by the trial judge.
Civil procedure
— Extension of time to appeal — delay in obtaining certified copies of proceedings and judgment may constitute sufficient cause — Appellate Jurisdiction Act s 11(1)
— Record of appeal defects — Endorsement of exhibits by trial judge — Effect on competence of appeal
— Technical delay — distinction between true technical delay and negligence
14 November 2018
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.
13 November 2018
A mistaken hearing time does not justify restoring proceedings where the applicant defaulted repeatedly.
Civil procedure
— exercise of judicial discretion — repeated non-attendance/neglect may justify refusal to restore a dismissed matter — Lyamuya principles
— setting aside dismissal for want of prosecution — court’s discretionary power to reopen dismissed proceedings — Rule 43(2) GN 250/2012
13 November 2018
Extension of time refused because applicant failed to show sufficient cause and account for cumulative delays.
Civil procedure — extension of time
— counsel’s negligence and client’s lack of diligence not ordinarily sufficient cause
— discretionary refusal where promptness not demonstrated
— Law of Limitation
— no legal requirement to attach drawn order
12 November 2018
Leave to appear and defend granted where non‑privity to contract raised a bona fide triable issue on consideration.
Civil procedure — Order XXXV summary procedure — leave to appear and defend — requires a bona fide triable issue
Commercial law — Dishonoured cheques — Liability of drawer/signatory/director — Requirement to prove consideration at trial
6 November 2018
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
— exercise of judicial discretion — Interlocutory stay refused where issues form part of defence and staying would delay justice
— Stay of proceedings — Whether pending administration of a debtor company justifies staying creditor’s suit — speculative risk of double recovery insufficient
Land law — Guarantees/mortgages — Creditor’s right to pursue guarantors where borrower is under administration or insolvency proceedings
1 November 2018
October 2018
Application to stay suit for arbitration dismissed where inter‑creditor arbitration clause did not cover the loan, mortgage and guarantee claims.
Arbitration — scope and construction of arbitration clause — Whether arbitration clause covers disputes under separate loan, mortgage and guarantee agreements and binds non‑parties
Civil procedure — Stay of proceedings pending arbitration — Procedural requirements for petition competence — Rule 18, Second Schedule to the Civil Procedure Code
31 October 2018
An application for leave to appeal is incompetent where the impugned ruling is interlocutory and appeals are barred by statute.
Appellate practice — Appellate jurisdiction — interlocutory decisions
30 October 2018
Court adjourned committal proceedings because a timely application for stay of execution to the Court of Appeal was pending.
Civil procedure — Execution of decree — Committal proceedings — Adjournment to avoid prejudice
30 October 2018
Attorney General may be joined in proceedings if the Attorney General considers the matter involves public interest or public property.
Administrative law — Attorney general act
— joinder/appearance in proceedings where matter involves public interest or public property
— procedural requirements
— right of audience
29 October 2018
The respondent supplied a non‑conforming generator; the applicant recovered the purchase price and interest, transport and punitive claims denied.
Contract law — acceptance requires reasonable opportunity to inspect (s36)
— delivery note insufficient to rebut non‑conformity
— interest awarded
— punitive and general damages declined
— specific damages proved for purchase price
— transport claim dismissed for lack of receipts
Contract law — Sale of goods — non‑conforming goods — description and implied condition that goods correspond with description (s15)
29 October 2018
Default judgment for recovery of unpaid personal loan: principal, default interest and post-judgment interest awarded to the plaintiff.
Commercial law — Default judgment
24 October 2018
Applicant failed to show sufficient cause for extension; Section 21(1) inapplicable and delay was due to inaction.
Limitation law — Limitation of actions — Extension of time
Limitation law — taxation of costs
— delays caused by laxity/inaction are not sufficient cause
— pending leave to appeal in a competent court does not bar filing
23 October 2018
Applicant (not drawer) raised bona fide triable issues; granted unconditional leave to defend a summary suit based on dishonoured cheques.
Civil procedure
— Order XXXV summary procedure — leave to appear and defend — requirements: bona fide/triable defence, not a sham
— Summary suits — Bona fide triable issue v. sham defence — Effect of subsequent letter of undertaking on liability for dishonoured cheques
23 October 2018
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
22 October 2018
Court dismissed the plaintiff’s suit for failure to prosecute and attend final pre-trial conference, awarding costs to defendants.
Commercial law — Commercial division
— Costs awarded to attending defendants
— Repeated non-attendance at final pre-trial conference
22 October 2018
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
18 October 2018
An affidavit whose jurat omits date and place renders the applicant's summary-procedure application incompetent and liable to be struck out.
Civil procedure
— Competence of application — summary-procedure application founded on defective affidavit is incompetent and struck out
— Procedure — High Court — power to strike out affidavits/applications that contravene law at any stage
Evidence — Affidavit jurat — omission of date/place (and deponent identification)
— cannot support application
— renders affidavit incurably defective
18 October 2018
Applicant's request to extend time to file a late witness statement denied for lack of sufficient cause.
Civil procedure
— extension of time to file witness statements
— extension of time — application under s.14 Law of Limitation Act and s.95 CPC
16 October 2018
Petitioner failed to prove the dispute fell under arbitration agreements and did not show readiness to arbitrate.
Arbitration — Stay of proceedings
— applicability of arbitration clause to dispute — Arbitration Act s 6
— readiness to arbitrate — Need for affidavit or evidence of steps taken
15 October 2018
An amended chamber summons supported by a supplementary affidavit filed without leave is incurably defective and is struck out.
Civil procedure
— Chamber summons — Amended chamber summons supersedes original summons and affidavit — Order XLIII r.2 CPC
— Procedural compliance — Supplementary affidavit cannot cure omission and argumentative or conclusory affidavit may be fatal — Rule 19(1) High Court (Commercial Division) Procedure Rules, Order XIX r.2 CPC
12 October 2018
A witness's voluntary refusal to attend is not an exceptional reason; the statement was struck and the suit dismissed.
Commercial law
— Commercial procedure — evidence-in-chief by witness statement
— Order XVII Rule 3 — dismissal where plaintiff has no other evidence
11 October 2018
Extension of case lifespan granted; belated additional and supplemental witness statements disallowed for failure to justify delay.
Civil procedure
— Case management — Duty to apply for extension of case life-span — Court discretion to enlarge timetable
— witness statements — Whether additional or supplemental witness statements may be filed after Rule 49(2) deadline — High Court (Commercial Division) Procedure Rules GN. No. 250 of 2012, Rules 49(1) and 49(2)
9 October 2018
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 — Application incompetent — Strike out with costs
3 October 2018
Full payment within agreed five months satisfied the settlement; respondent must surrender title deeds and discharge mortgages.
Banking law — Default and enforcement — Validity where creditor has extended or accepted late payments — Recall of loan on default
Commercial law — settlement deed recorded as consent judgment — Time of essence: instalments v overall deadline — Effect of waiver by conduct
Land law — Mortgage-equitable mortgage by deposit of title deeds — Surrender of title deeds and discharge of mortgages upon satisfaction of judgment
3 October 2018
Full payment within the agreed overall period satisfied the settlement; bank must discharge mortgages.
Civil procedure — enforcement of consent judgment — Obligation to discharge mortgages upon full performance of settlement terms
Contract law — Deed of settlement — Time of essence for instalments — Effect of parties' conduct and waiver on enforcement of default clause
3 October 2018
September 2018
Applicant failed to show irreparable harm; injunction refused and bank-order was improper against a non-party.
Civil procedure — Procedure — propriety of invoking Order XXXVII and Civil Procedure Code provisions against a non-party to the main suit
Commercial law — Bank guarantees — unconditional advance payment guarantee — bank’s obligation to pay on first demand
28 September 2018