Jcqueline Mach Damon & another v Hugh George & 5 others [2020] KEELC 1162 (KLR)
The bottom line
#A Kenyan company's board can withdraw a court case filed without its permission, and the withdrawal is nearly impossible to reverse.
What this practically means
#Executive summary
#Key legal issues
#Validity of the 2nd plaintiff's withdrawal of the suit under Order 25 Rule 1
The withdrawal was valid; the notice in writing was filed and all parties had notice on 24th September 2019
Order 25 Rule 1 confers an unfettered right on a plaintiff to discontinue before setting down for hearing by written notice served on all parties. Here the notice was filed, all parties were represented in court on 24th September 2019, and the notice was served in court or brought to their notice. The Court was therefore entitled to mark the suit withdrawn.
Whether the suit as instituted in the name of the 2nd plaintiff was authorized
The suit was instituted without the 2nd plaintiff's authorization; the verifying affidavit requirement under Order 4 rule 1(4) was not met, and the company's board resolved not to ratify
The record showed no board resolution authorizing the institution of the suit or authorizing the 1st plaintiff to swear the verifying affidavit. Under Order 4 rule 1(4) a corporate plaintiff's verifying affidavit must be sworn by a duly authorized officer. Though a company may ratify, the board on 4th September 2019 resolved not to ratify and to withdraw instead, which it was entitled to do.
Whether orders in Nairobi Misc. Civil Application No. E.157 of 2019 barred the withdrawal
No; the Misc. application had no application to the present suit and the defendants were not parties to it
The Misc. application was filed after the present suit, contained no reference to it, and the present defendants were not parties to it and could not be affected by any orders issued therein. No relationship existed between the two causes binding this Court to orders in the Misc. application.
Whether the conditions for review under Section 80/Order 45 Rule 1 were satisfied
They were not; no error apparent on the face of the record and no new matter or evidence
Review under Order 45 Rule 1 requires an error or mistake apparent on the face of the record, discovery of new and important matter, or other sufficient reason. The applicant demonstrated none of these; the application was accordingly dismissed with each party bearing own costs.
Legal principles established
#- A plaintiff's right to withdraw a suit or part of the claim before setting down for hearing is unfettered; once exercised by notice in writing served on all parties, the Court has no discretion to refuse the withdrawal
- A suit instituted by a corporation without authority may be ratified, or the corporation may elect to withdraw, by board resolution filed before hearing
Court orders
#- 1.The applicant's application dated 23rd October 2019 is dismissed
- 2.Each party bears their own costs of the application
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act, Cap 21 and Order 45 of the Civil Procedure Rules, 2010 (application for review)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jcqueline Mach Damon & another v Hugh George & 5 others [2020] KEELC 1162 (KLR)", Case Analysis (2020). Miscellaneous application dated 23rd October 2019 arising from the joint plaint dated 27th February 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1162/eng@2020-10-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.