East Africa Capital Partners Management LP, Wananchi Nominees Limited, International Consulting Marketing Services Kenya Limited, East Coast Telecoms Limited & Wananchi Group Holdings Limited v Wananchi Nominees Limited, ISP Kenya Limited, East Coast Telecoms Limited, East Africa Capital Partners Management LP, Africa Telecommunications Media and Technology Fund I, LLC, Wananchi Group Holdings Limited, Richard Bell, Wananchi Group Holdings Limited, Wananchi Nominees Limited, International Consulting Marketing Services Limited (formerly ISP Kenya Limited) & East Coast Telecoms Limited [2019] KEHC 3958 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI COMMERCIAL & TAX DIVISION

CIVIL SUIT NO. 84 OF 2017

EAST AFRICA CAPITAL PARTNERS MANAGEMENT LP................PLAINTIFF

VERSUS

WANANCHI NOMINEES LIMITED...................................................1ST DEFENDANT

ISP KENYA LIMITED..........................................................................2ND DEFENDANT

EAST COAST TELECOMS LIMITED...............................................3RD DEFENDANT

(By original action)

And Between

WANANCHI NOMINEES LIMITED.......................................................1ST PLAINTIFF

INTERNATIONAL CONSULTING MARKETING

SERVICESLIMITED (formerly ISP KENYA LIMITED)....................2ND PLAINTIFF

EAST COAST TELECOMS LIMITED...............................................3RD PLAINTIFF

VERSUS

EAST AFRICA CAPITAL PARTNERS MANAGEMENT LP.........1ST DEFENDANT

AFRICA TELECOMMUNICATIONS

MEDIAAND TECHNOLOGY FUND I, LLC...................................2ND DEFENDANT

WANANCHI GROUP HOLDINGS LIMITED..................................3RD DEFENDANT

RICHARD BELL...................................................................................4TH DEFENDANT

(By Counterclaim)

And further Between

WANANCHI GROUP HOLDINGS LIMITED.............................................PLAINTIFF

VERSUS

WANANCHI NOMINEES LIMITED.................................................1ST DEFENDANT

INTERNATIONAL CONSULTING MARKETING

SERVICES LIMITED(formerly ISP KENYA LIMITED)...............2ND DEFENDANT

EAST COAST TELECOMS LIMITED.............................................3RD DEFENDANT

(By Further Counterclaim)

R U L I N G

1. Before me is a Notice of Motion application dated 1st October 2018.  The same is filed by Wananchi Group Holdings Limited (the 3rd Defendant in the counterclaim).  The prayer sought is for an order to strike to the 3rd Defendant in the counterclaim from this action.

2. The Defendants in the original suit, namely Wananchi Nominee Limited, ISP Kenya Limited and East Coast Telecoms Limitedcounterclaimed and in so doing sued the 3rd Defendant in the counterclaim.  The only prayer in that counterclaim is for an injunction to restrain the 3rd Defendant in the counterclaim, amongst others, from negotiating the sale of, offering for sale, and/or selling Wananchi Business Services (WBS).

3. The 3rd Defendant in the counterclaim through the affidavit of Randhirsingh Judooo, its Director, deponed that the 3rd Defendant in the counterclaim reached a business decision not to sell WBS because it is no longer economically viable.  There is attached to the said affidavit an extract of the minute of the Board of Directors of the 3rd Defendant in the counterclaim whereby it was resolved not to proceed with sale of WBS.

4. It is on that basis the application seeks the striking out of the 3rd Defendant in the counterclaim, that is because the basis of the counterclaim ceased to exist.  Further the deponent stated that the 3rd Defendant in the counterclaim should be struck out because it was joined in these proceedings because of its relationship with the 1st to the 4th Defendant, who were struck out of these proceedings by this Court’s ruling of 21st September 2018.

5. Although the application was served on all parties there was no opposition filed.

6. Accordingly since the foundation of the cause which brought the 3rd Defendant in the counterclaim ceased to exist there is no reason to continue having that party in this action.  There will be no costs awarded to the application because the applicant concedes that at one time it intended to sell WBS, the very basis of the counterclaim.

7. The order of the Court is as follows:

a. The 3rd Defendant in the counterclaim, Wananchi Group Holdings Limited, is hereby struck out from the counterclaim.

b. There shall be no order as to costs of the Notice of Motion dated 1st October 2018.

DATED, SIGNED and DELIVERED at NAIROBI this 4TH day of OCTOBER, 2019.

MARY KASANGO

JUDGE

Ruling ReadandDeliveredinOpen Courtin the presence of:

Sophie....................................COURT ASSISTANT

............................................FOR THE PLAINTIFF

.................................FOR THE 1ST DEFENDANT

................................FOR THE 2ND DEFENDANT

................................FOR THE 3RD DEFENDANT