Simon Kandie & 6 others v Richardson Kipkoech Bundotich & 5 others [2018] KEELC 4355 (KLR)

Environment and Land Court

1 February 2018

MSMunyao Sila

319 words in judgment

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The bottom line

What this practically means

Executive summary

Before the Environment and Land Court at Nakuru was an application dated 26 July 2017 by the 1st and 2nd defendants seeking, inter alia, dismissal of the suit for want of prosecution and return of various company instruments deposited in court. Before the application could be determined, the plaintiffs withdrew the suit, rendering the dismissal limb academic; the court held there was therefore no issue of dismissal to decide. On the return of the company instruments, the court had before it a letter dated 19 December 2017 from the Registrar of Companies listing the company's directors. The 1st and 2nd defendants did not feature on that list, whereas the 1st, 3rd and 6th plaintiffs did. Counsel for the defendants, Mr. Olonyi, tendered no evidence demonstrating that his clients were company officials, relying instead on orders made in HCC No.18 of 2015 and JR No.1 of 2015. The court called for and perused both files: HCC No.18 of 2015, filed by the defendants' clients, had been dismissed, and the judicial review file had had no movement since 2015; crucially, neither contained any determination that the persons named on the 17 December 2017 list were not directors of the company. The court accordingly ordered that the company instruments be released jointly to the 1st, 3rd and 6th plaintiffs. The judgment, dated and delivered at Nakuru on 1 February 2018, was rendered by Munyao Sila J. No costs order is recorded.

Key legal issues

Custody and release of company instruments deposited in court

Holding

Instruments released jointly to plaintiffs shown by the Registrar of Companies' records to be directors

Reasoning

The court perused a letter dated 19 December 2017 from the Registrar of Companies listing the directors. The 1st and 2nd defendants did not appear on that list, whereas the 1st, 3rd and 6th plaintiffs did. Counsel for the defendants relied on orders in HCC No.18 of 2015 and JR No.1 of 2015, but the court perused those files and found no determination in them that the persons on the 17 December 2017 list were not directors. Absent contrary evidence, release to the listed directors was appropriate.

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Dismissal for want of prosecution

Holding

Moot following plaintiffs' withdrawal of the suit

Reasoning

The application dated 26 July 2017 sought dismissal for want of prosecution, but before it could be determined the plaintiffs withdrew the suit, leaving nothing to dismiss and rendering that limb of the application academic.

p. 1

Legal principles established

A party claiming release of company instruments held in court must demonstrate, by evidence such as Registrar of Companies records, that they are company officials entitled to custody

Court orders

1.Suit marked as withdrawn by the plaintiffs, rendering the dismissal-for-want-of-prosecution application moot
2.The company instruments be released jointly to the 1st, 3rd and 6th plaintiffs

Authorities

Cases cited (1)

HCC No.18 of 2015

Jurisdiction invoked: Original civil jurisdiction of the Environment and Land Court (suit pending before it; application dated 26 July 2017)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Simon Kandie & 6 others v Richardson Kipkoech Bundotich & 5 others [2018] KEELC 4355 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4355/eng@2018-02-01

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.