SOTIK DAIRY CREAMERIES LTD vs IN THE MATTER OF THE COMPANIES ACT (Children Miscellaneous Application 69 of ??) [2000] KEHC 494 (KLR) (28 November 2000)

REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MISC.APPLICATION NO. 69 OF 2000

SOTIK DAIRY CREAMERIES LTD .............................................PLAINTIFF
versus
IN THE MATTER OF THE COMPANIES ACT........................DEFENDANT

R U L I N G

The applicant has moved this court by way of a Chamber Summons taken out under Order IXA rule 10 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act.

It seeks to have my order, issued on 12th July, 2000 discharged, and set aside that it=s application of 11th February, 2000 be set down for hearing.

The application is opposed.

At the commencement of the hearing, counsel for the respondent raised a preliminary objection. It was his submission that the further affidavit that was sworn by Mr. Koech, the counsel for the applicants was defective. Mr. Arwas objection was based on the facts that the said affidavit tended to support a non existent affidavit and further it was not indicated where it was sworn. Mr. Nabutete did in fact concede to the defects and in the event the affidavit was declared inadmissible. The application is made under Order IXA rule 10, which stipulates that
 

Awhere judgment has been entered under the order the court may set aside or vary such judgment and any consequential degree or order upon such terms as are just.@

Order IXA is headed Aconsequence of non-appearance and default of defence@ Upon perusal of the pleadings and having taken into account the submissions of both account, it is apparent that the application cannot lie under the above order, as it cannot be said that whatever orders were issued by the court had been issued as a consequence of non appearance or default of defence. Indeed, Mr. Nabutete again conceded that he had moved the court under the moving order, but he urged the court to grant him the orders that he sought as his application was also made under Section 3A of the Civil Procedure Act. Unfortunately that line of submission was also bound to fail because Section 3A cannot be invoked in instances which are clearly catered for by otherprovisions of the Civil Procedure Rules. In his case he should have made the application under Order IXB and Section 3A cannot therefore come to his aid. In view of the above, the application is thus dismissed with costs.

Dated and delivered this 28th day of November 2000.

JEANNE W. GACHECHE

COMMISSIONER OF ASSIZE

In the presence of Mr. Nabutete. No appearance for the respondents.