Commercial Law Index

In this case, the appellant claimed that the trial magistrate erred in holding that the appellant had a contractual duty to inform the respondent of the garnishee order. This case illustrates the duty to inform with regards to garnishee orders that also applies to banks.

The court considered whether the trial magistrate erred in holding that the appellant was legally bound to inform the respondent on the existence of the garnishee order. The court held that a bank has the duty to inform a customer in good time of a garnishee order so that the customer may take legal steps if he so wishes. Thus, the court held that though a notice from the appellant had been made in good time the fact that it reached the respondent late amounted to a breach of the fiduciary duty between them.

The court also held that it is a principle of law that an issue not raised at trial will not be entertained on appeal. Thus, the appellant was not allowed to raise questions as to whether the garnishee order was satisfied nor whether it was set aside.

In considering general damages, the court held that the trial court was correct in awarding general damages. The court dismissed the appeal in its entirety.

The respondent raised preliminary points against the application on the grounds that a valid and appropriate affidavit did not support the application according to the Civil Procedure Code, Cap 33 of the Revised Edition 2002 order XLIII rule 1. Further, that the application was incompetent for being omnibus.

The court considered whether wrongfully mentioning a person in the chamber of summons which has been sworn by another in support of the application is a fatal ailment. Further, whether the application is omnibus because it contained two applications, namely, for extension of time, if successful a stay of execution.

The court held that wrongfully mentioning a person in the chamber of summons in support of an application is trivial to warrant striking out the whole application. Further taking the course will be conforming to the spirit of the Constitution art 107A (2) (e). The court also held that the vision of the judiciary is to administer justice effectively. Therefore, it would not be inappropriate for courts of law to encourage a multiplicity of proceedings. More so, an application comprising of two or more applications which are interrelated is allowable at law.

The court found that striking out the application will amount to wasting of resources because the applicant would possibly come back later with the replacement of names in the application.

The court accordingly allowed the applicant to substitute the names in the chamber summons, rectify the names by hand with an initial beside the handwriting alteration.

A court can dismiss a matter for want of prosecution where the person who initiated the court action does not take active steps to pursue the case in court such as not appearing in court. The court dealt with a case where the lawyer did not appear before court on the date for hearing. The case was thereafter dismissed for want of prosecution. This case was an application to set aside the order to dismiss the original court suit for want of prosecution.

To set aside an order that a court suit be set aside for want of prosecution, the applicant must give sufficient grounds that must balanced against the interests of justice. In this case, the lawyer for the applicant did not appear because he was unwell on the court hearing date. The court held that this constituted a sufficient reason to set aside the notice to dismiss the case. In the interests of justice and the compelling reasons, the application to set aside the notice to dismiss was granted.

Two distinct, but related cases are of relevance in showing the genesis of this application.

The first relates to the respondent seeking to enforce a contract of works. The second relates to the applicant’s claim to enforce an agreement to arbitrate (as per the contract agreement). In this application before the High Court, the applicant sought to have the former case stayed, pending the final determination of the latter.

The applicant claimed that he sought the order to stay the suit as there was an agreement to arbitrate; proceeding with the respondent’s claim would be nugatory. The respondent resisted this application on the basis of procedural correctness.

This court determined that the issue was to verify whether this court had jurisdiction to entertain an application for stay of the respondent’s case, in view of the notice of appeal that was instituted by the applicant.

It was held that this court lacks jurisdiction over the latter case; it is the Court of Appeal which holds jurisdiction. Therefore, the matter was dismissed in its entirety.

The main case was whether the issue before this court was directly and substantially in issue with a matter pending in the court below.

The respondent threatened the applicant to cease any operations and vacate a Lake Natron game controlled area it currently occupies (‘the hunting block’). The applicant filed this application, seeking this court to issue an interim order restraining the respondents from evicting them at the hunting block.

The respondent claimed that this court does not have the jurisdiction to entertain this matter as it was res sub judice, and thus should be dismissed. The reason lodged was that the issue in this matter was directly and substantially related to the pending appeal. The applicant argued against these claims and contended that in the pending appeal, he was challenging different issues in relation to this application.

This court applied s 8 of the Civil Procedure Code in determining that the facts and circumstances of this application where identical with the pending matter below, and as such res sub judice.

This application was stayed pending the outcome of the appeal in the court below. 

The case dealt with an opposition to the filing of an arbitration award on the grounds that it was not filed in the form of a petition; additionally the necessary documents and exhibits were not filed.

The court held that the appropriate provision of the the Arbitration Act, Cap 15 of 2002 does not prescribe the form or manner in which an arbitration award should be filed, but merely provides that it should be filed. Further it does not matter if the arbitration award is submitted to the court by post or any other means, as long as the award reaches the court for filing. The court emphasised that an award must be filed in a manner that is convenient to the parties.

The court thereby refused to grant the application opposing the filing of the arbitration award because the manner chosen was in line with the law.