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Court of AppealAllowedCivil Application No. 51 of 2015

Africa Oil Turkana Limited & 2 others v Maosa Kengara Monena & 3 others [2016] KECA 643 (KLR)

Court of Appeal of Kenya
21 April 2016
David Kenani MaragaD. K. MaragaSKS. Gatembu KairuAMA. K. Murgor
317 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out Maosa Kengara Monena's Notice of Appeal in the Africa Oil Turkana winding-up dispute, with costs awarded to Africa Oil.

What this practically means

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Executive summary

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This is a short procedural ruling of the Court of Appeal at Eldoret (delivered at Kisumu) by Maraga, Gatembu Kairu and Murgor, JJA, in Civil Application No. 51 of 2015. The applicants, Africa Oil Turkana Limited, Africa Oil Kenya BV and Africa Oil Corporation, moved to strike out a Notice of Appeal lodged by the 1st respondent, Maosa Kengara Monena, on 21st July 2015, in an intended appeal against the judgment and order of Kimondo, J dated 2nd July 2015 in Winding Up Cause No. 1 of 2014 (formerly Winding Up Cause No. 1 of 2012, Kitale) at the High Court in Eldoret. The application arose from the same judgment as Civil Application No. 50 of 2015, involved the same parties and the same submissions, and the parties consented to the adoption of the submissions made in that companion application. Noting that the 1st respondent, though served, did not appear, the Court held it unnecessary to write two separate rulings. It directed that the ruling delivered in Civil Application No. 50 of 2015 applies mutatis mutandis, allowed the applicants' Notice of Motion dated 17th September 2015, struck out the 1st respondent's Notice of Appeal, and awarded costs to the applicants. The ruling does not disturb the High Court judgment, which remains undisturbed by this decision. No authorities or statutes are cited.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicants' Notice of Motion dated 17th September 2015, seeking to strike out the 1st respondent's Notice of Appeal lodged on 21st July 2015, should be allowed

Key legal issues

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01

Whether a companion application arising from the same judgment, with the same parties and submissions, can be determined by adopting the ruling in the companion application

Holding

Yes. The Court, with the parties' consent, adopted the submissions made in Civil Application No. 50 of 2015 and applied the ruling delivered there mutatis mutandis, allowing the motion and striking out the Notice of Appeal.

Reasoning

The application arose from the same judgment as Civil Application No. 50 of 2015; the parties were the same, as were the averments and submissions of those who appeared. The only difference was that the 1st respondent here, though served, did not appear. The parties consented to adoption of the submissions in the companion application, making a separate ruling unnecessary. The motion was therefore allowed on identical terms and the Notice of Appeal struck out with costs to the applicants.

p. 1

Legal principles established

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  • Where an application arises from the same judgment and the parties and submissions are identical to those in a companion application, the court may adopt the submissions and ruling in the companion application and apply them mutatis mutandis without writing a separate ruling.

Court orders

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  1. 1.The applicants' Notice of Motion dated 17th September 2015 is allowed
  2. 2.The Notice of Appeal lodged by the 1st respondent on 21st July 2015 is struck out
  3. 3.Costs of the application are awarded to the applicants

The bench

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One judgment of the whole court — no separate or dissenting opinions.

David Kenani Maraga
majority
SK
majority
AM
majority
On appeal from
High Court of Kenya at Eldoret
Winding Up Cause No. 1 of 2014 (formerly Winding Up Cause No. 1 of 2012 Kitale)
Jurisdiction invoked
Not expressly stated; the Court exercised its inherent/appellate jurisdiction to strike out a Notice of Appeal lodged in an intended appeal against the judgment of Kimondo, J, the application being treated as a companion to Civil Application No. 50 of 2015 arising from the same judgment.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

the applicants’ Notice of Motion herein dated 17 th September 2015 is similarly allowed, and the Notice of Appeal lodged on 21 st July 2015 is struck out with costs to the applicants.
p. 1Final orders - strike out of Notice of Appeal
the ruling we have just delivered in Civil Application No. 50 of 2015 applies mutatis mutandis to this application
p. 1Adoption of companion ruling

Issues in the judgment

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minor

This ruling incorporates by reference the ruling in Civil Application No. 50 of 2015 rather than restating the reasoning; the substantive grounds for striking out the Notice of Appeal are found in that companion ruling, not in this document.

minor

The 1st respondent, Maosa Kengara Monena, was served but did not appear, so no respondent submissions are recorded in this ruling.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Africa Oil Turkana Limited & 2 others v Maosa Kengara Monena & 3 others [2016] KECA 643 (KLR)", Case Analysis (2016). Civil Application No. 51 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/643/eng@2016-04-21

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