Background and Introduction
1. This Ruling determines the application dated 25th October 2024, filed Ms. Kimeto & Associate Advocates. The application seeks leave to amend the OS dated 27th February 2024 as well as an order to consolidate this matter with Insolvency Petition E004 and E007 of 2019 (the petitions). The application is supported by an affidavit sworn by Jackline Kimeto (Advocate). It is opposed by a replying affidavit sworn by Kibe Mungai (Advocate), the 1st respondent, who additionally filed a Notice of Preliminary Objection dated 16th December 2024.
Analysis and Determination
2. The parties filed their respective written submissions on the preliminary objection and the application, which I have carefully considered alongside the pleadings and evidence. The preliminary objection would naturally take precedence over the application.
3. The preliminary objection before this court is raised on the grounds that the present matter is res judicata, that the consolidation of matters, which have already been withdrawn by this court, is improper and untenable and so is the intended amendment of the OS.
4. The test for a proper preliminary objection was articulated in Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, where it was held that a preliminary objection must raise a pure point of law, which if successfully argued, would dispose of the matter entirely. Upon careful consideration, I find that the preliminary objection raised meets this threshold as it concerns fundamental jurisdictional issues that can be determined without delving into factual controversies.
5. The first issue raised in the preliminary objection is that of the petitions being res judicata. The doctrine of res judicata, as codified under Section 7 of the Civil Procedure Act, bars litigation on issues that have been conclusively determined by a competent court. The respondents contend that the current application is an attempt to re-litigate and reopen the issue of the insolvency petitions which have been withdrawn, by seeking a consolidation of the same.
6. It is undisputed that the insolvency petitions were withdrawn through the Notices of Withdrawal dated 1st September 2023, which are attached to the applicant’s documents. It has equally been admitted by both parties that an application to reinstate the petitions was dismissed by this court vide a Ruling delivered on 29th November 2023. That Ruling has neither been set aside, reviewed or appealed.
7. I have reviewed the said Ruling. This court, (Mong’are J), stated in part;
“In the case before me, the Petitioner filed a Notice of Withdrawal of Suit to this petition and the Petition in E007 of 2019 on September 1, 2023 and immediately served the same upon all parties to the suit. Effectively upon the service of the said notice, the petition herein stood withdrawn. All orders and directions pertaining in the said petition were therefore rendered irrelevant and of no legal effect by operation of order 25 rule 1 of the Civil Procedure Rules. This court is persuaded that the prayer to reinstate the petition herein is therefore unsustainable as there is no corresponding provision or Order under the Civil Procedure Rules on how the same can be reinstated. The said prayer No. 2 in the present application therefore fails”.
8. I therefore agree with the 1st respondent’s submission that the existence of the petitions is a matter that is res judicata. As established in Charles Kiptabei Birech v Paul Waweru Mbugua & Another (2021) eKLR, once a suit is discontinued, it ceases to exist and a party cannot breathe life into it by whichever means. Since the two petitions no longer exist, their consolidation is not possible.
9. Even if I was wrong on this approach, both parties have submitted extensively on the test for granting an order for consolidation. The present proceedings, filed by way of an OS, concern a single issue which is the enforcement of a professional undertaking by an advocate. In contrast, the petitions serve an entirely different purpose which is the winding up of a company.
10. The latter proceedings involve additional parties, including a liquidator, administrator, and creditors, who are not connected to the professional undertaking sought to be enforced. Even if the undertaking were being enforced to facilitate the withdrawal of the petitions, it remains enforceable only against the advocate and no one else. Consequently, this prayer fails.
11. The next issue is the amendment of the OS. The applicant states that she is entitled to amend her OS following a Ruling of this court which directed that this matter proceeds as if it was filed by way of a plaint. The applicant contends that the amendment is important for purposes of presenting a complete claim, including the consolidation of the petitions and adding prayers for the payment of interest.
12. It is well settled that amendments should generally be allowed to enable the court to determine the real questions in controversy between the parties, provided that no injustice or prejudice is occasioned to the opposing party. In Eastern Bakery v Castelino [1958] EA 461, the court emphasized that amendments should be freely allowed unless they result in an injustice that cannot be compensated by costs.
13. The applicant has not annexed a draft OS outlining the proposed amendments. However, she confirms that the amendments will not alter the substratum of the suit.
14. Having considered the application, and in the interest of expediting the determination of the issues at hand, I allow the amendment of the OS, provided it does not change the fundamental nature of the cause of action or seek to include the petitions, which I have determined to be non-existent. I find that no prejudice will be suffered by the respondents, as they remain at liberty to file any necessary responses. The prayer for leave to amend the OS is therefore allowed.
Disposition
15. Accordingly, the notice of preliminary objection is partly successful in so far as the prayer seeking consolidation of the petitions is concerned. Leave is however granted to the applicant to amend the OS. The costs of this application shall await the outcome of the suit.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 19TH DAY OF FEBRUARY 2025.
F. MUGAMBI
JUDGE
1. This Ruling determines the application dated 25th October 2024, filed Ms. Kimeto & Associate Advocates. The application seeks leave to amend the OS dated 27th February 2024 as well as an order to consolidate this matter with Insolvency Petition E004 and E007 of 2019 (the petitions). The application is supported by an affidavit sworn by Jackline Kimeto (Advocate). It is opposed by a replying affidavit sworn by Kibe Mungai (Advocate), the 1st respondent, who additionally filed a Notice of Preliminary Objection dated 16th December 2024.
Analysis and Determination
2. The parties filed their respective written submissions on the preliminary objection and the application, which I have carefully considered alongside the pleadings and evidence. The preliminary objection would naturally take precedence over the application.
3. The preliminary objection before this court is raised on the grounds that the present matter is res judicata, that the consolidation of matters, which have already been withdrawn by this court, is improper and untenable and so is the intended amendment of the OS.
4. The test for a proper preliminary objection was articulated in Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, where it was held that a preliminary objection must raise a pure point of law, which if successfully argued, would dispose of the matter entirely. Upon careful consideration, I find that the preliminary objection raised meets this threshold as it concerns fundamental jurisdictional issues that can be determined without delving into factual controversies.
5. The first issue raised in the preliminary objection is that of the petitions being res judicata. The doctrine of res judicata, as codified under Section 7 of the Civil Procedure Act, bars litigation on issues that have been conclusively determined by a competent court. The respondents contend that the current application is an attempt to re-litigate and reopen the issue of the insolvency petitions which have been withdrawn, by seeking a consolidation of the same.
6. It is undisputed that the insolvency petitions were withdrawn through the Notices of Withdrawal dated 1st September 2023, which are attached to the applicant’s documents. It has equally been admitted by both parties that an application to reinstate the petitions was dismissed by this court vide a Ruling delivered on 29th November 2023. That Ruling has neither been set aside, reviewed or appealed.
7. I have reviewed the said Ruling. This court, (Mong’are J), stated in part;
“In the case before me, the Petitioner filed a Notice of Withdrawal of Suit to this petition and the Petition in E007 of 2019 on September 1, 2023 and immediately served the same upon all parties to the suit. Effectively upon the service of the said notice, the petition herein stood withdrawn. All orders and directions pertaining in the said petition were therefore rendered irrelevant and of no legal effect by operation of order 25 rule 1 of the Civil Procedure Rules. This court is persuaded that the prayer to reinstate the petition herein is therefore unsustainable as there is no corresponding provision or Order under the Civil Procedure Rules on how the same can be reinstated. The said prayer No. 2 in the present application therefore fails”.
8. I therefore agree with the 1st respondent’s submission that the existence of the petitions is a matter that is res judicata. As established in Charles Kiptabei Birech v Paul Waweru Mbugua & Another (2021) eKLR, once a suit is discontinued, it ceases to exist and a party cannot breathe life into it by whichever means. Since the two petitions no longer exist, their consolidation is not possible.
9. Even if I was wrong on this approach, both parties have submitted extensively on the test for granting an order for consolidation. The present proceedings, filed by way of an OS, concern a single issue which is the enforcement of a professional undertaking by an advocate. In contrast, the petitions serve an entirely different purpose which is the winding up of a company.
10. The latter proceedings involve additional parties, including a liquidator, administrator, and creditors, who are not connected to the professional undertaking sought to be enforced. Even if the undertaking were being enforced to facilitate the withdrawal of the petitions, it remains enforceable only against the advocate and no one else. Consequently, this prayer fails.
11. The next issue is the amendment of the OS. The applicant states that she is entitled to amend her OS following a Ruling of this court which directed that this matter proceeds as if it was filed by way of a plaint. The applicant contends that the amendment is important for purposes of presenting a complete claim, including the consolidation of the petitions and adding prayers for the payment of interest.
12. It is well settled that amendments should generally be allowed to enable the court to determine the real questions in controversy between the parties, provided that no injustice or prejudice is occasioned to the opposing party. In Eastern Bakery v Castelino [1958] EA 461, the court emphasized that amendments should be freely allowed unless they result in an injustice that cannot be compensated by costs.
13. The applicant has not annexed a draft OS outlining the proposed amendments. However, she confirms that the amendments will not alter the substratum of the suit.
14. Having considered the application, and in the interest of expediting the determination of the issues at hand, I allow the amendment of the OS, provided it does not change the fundamental nature of the cause of action or seek to include the petitions, which I have determined to be non-existent. I find that no prejudice will be suffered by the respondents, as they remain at liberty to file any necessary responses. The prayer for leave to amend the OS is therefore allowed.
Disposition
15. Accordingly, the notice of preliminary objection is partly successful in so far as the prayer seeking consolidation of the petitions is concerned. Leave is however granted to the applicant to amend the OS. The costs of this application shall await the outcome of the suit.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 19TH DAY OF FEBRUARY 2025.
F. MUGAMBI
JUDGE