Southdown Developers Limited, Haithar Haji Abdi & Abdi Rahimaithar Haji v Kenya National Capital Corporation Limited; Haithar Haji Abdi & Abdi Rahimaithar Haji (Applicant/Aggrieved Parties); Oceania Investment Limited & Avic International Project (K) Limited [2020] KEHC 10359 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

CIVIL SUIT NO. 1181 OF 1992

SOUTHDOWN DEVELOPERS LIMITED............................................PLAINTIFF

-VERSUS-

KENYA NATIONAL CAPITAL CORPORATION LIMITED..........DEFENDANT

AND

HAITHAR HAJI ABDI ............................1ST APPLICANT/AGGRIEVED PARTY

ABDI RAHIMAITHAR HAJI..................2ND APPLICANT/AGGRIEVED PARTY

OCEANIA INVESTMENT LIMITED..........................1ST INTERESTED PARTY

AVIC INTERNATIONAL PROJECT (K)

LIMITED.......................................................................2ND INTERESTED PARTY

CONSOLIDATED WITH

CIVIL SUIT NO. 6054 OF 1991

HAITHAR HAJI ABDI..................................................................1ST PLAINTIFF

ABDI RAHIMAITHAR HAJI.......................................................2ND PLAINTIFF

-VERSUS-

KENYA NATIONAL CAPITAL CORPORATION LIMITED.......DEFENDANT

RULING ON DIRECTIONS

1) The matter was placed before this court to issue directions onthe motion dated 20thNovember 2020.  The aforesaid motion is taken out by Hithari Haji Abdi and Abdi Rahimarthar Haji, the 1stand 2ndInterested Parties herein.

2) Mr. Oyatsi who appeared on behalf of the applicants, urged thiscourt to certify the motion as urgent and to further list it for interpartes hearing on priority basis.  The applicants also asked this court to direct the motion to be disposed of by written submissions and further grant the applicant leave to file an affidavit of service to answer the allegations made by the respondents that they were not served with the motion dated 17. 1.2020.

3) Mr. Ondieki, learned advocate for Kenya National CapitalCorporation Ltd, the defendant herein, urged this court not to certify the applicants’ motion as urgent.  He pointed out that the application for review was in respect of a ruling delivered in the year 2003.  The defendant’s advocate sought for 14 days to enable it file a response to the applicants’ motion. The learned advocate was not averse to have the aforesaid motion disposed of by written submissions.

4) Mr. Ayieko, learned advocate for Southdown Developers Ltd, theplaintiff herein, stated that it did not participate in the motion dated 17. 1.2020 which gave rise to this court’s ruling delivered on 13. 11. 2020 because it was not served upon it.  The plaintiff stated that it needed 14 days to file a response to the instant motion.

5) Mr. Chege, learned advocate for the 1st and 2nd InterestedParties stated that his clients did not participate in the motion dated 17. 1.2020 because the same was not served upon the Interested Parties.

6) Having considered the rival oral submissions, it is apparent thatthere is no dispute that there is need to allow the respondents to respond to the motion dated 20/11/2020.   They have each asked to be given 14 days to do so.  The other proposal which was not opposed is the request to have the matter disposed of by written submissions.

7) The plaintiff, the defendant and the Interested Parties urgedthis court not to certify the motion dated 20. 11. 2020 as urgent since the same seeks to review a ruling which arose out an application which had sought to inter alia declare the ruling delivered on 15. 10. 2003 as null and void.

8) A careful perusal of the motion and the supporting and thefurther affidavit shows that the motion dated 20. 11. 2020 is urgent since it seeks to stay the execution of certain judgments and decrees issued by various courts. I am convinced there is need to certify the same as urgent.

9) In the end, I make the following orders and directions:

i. The motion dated 20. 11. 2020 is certified urgent hence it should be heard on priority basis.

ii. The respondents namely:

a) The plaintiff,

b) The defendant and

c) The 1st and 2nd Interested Parties are given 14 days to file and serve their responses to the aforesaid motion.

iii. The 1st and 2nd applicants are granted leave to file their affidavit of service evidencing service of the motion dated 17. 1.2020.

iv. The motion dated 20. 11. 2020 to be disposed of by written submissions.

a) The applicants to file and serve written submission within 14 days from the date of service by the respondents of their responses to the instant motion.

b) The respondents to have 14 days from the date of service by the applicants to file and serve written submissions.

v. Mention on 18th January 2021 before the duty Judge to confirm compliance.

vi. Ruling on the motion dated 20. 11. 2020 to be delivered on 5/3/2021.

Dated, Signed and Delivered online via Microsoft Teams at Nairobi this 1st day of December, 2020.

............................

J. K.  SERGON

JUDGE

In the presence of:

………………………………… for the Plaintiff

………………………………… for the Defendant

………………………………... for the 1st and 2nd Applicants

………………………………… for the 1st Interested Party

……………………………….. for the 2nd Interested Party