Case Metadata |
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| Case Number: | Civil Appeal 13 of 1981 |
|---|---|
| Parties: | Musa v Life Agencies International (Kenya) Ltd |
| Date Delivered: | 16 Dec 1981 |
| Case Class: | Civil |
| Court: | Court of Appeal at Nairobi |
| Case Action: | Judgment |
| Judge(s): | Chunilal Bhagwandas Madan, Cecil Henry Ethelwood Miller, Kenneth D Potter |
| Citation: | Musa v Life Agencies International (Kenya) Ltd [1981] eKLR |
| Advocates: | Satish Gautama Esq for Appellants Messrs Machira & Co Advocates for Respondents |
| Court Division: | Civil |
| County: | Nairobi |
| Advocates: | Satish Gautama Esq for Appellants Messrs Machira & Co Advocates for Respondents |
| Case Summary: | Musa v Life Agencies International (Kenya) Ltd Court of Appeal, at Nairobi December 16, 1981 Madan, Miller & Potter JJA Civil Appeal No 13 of 1981 Company Law - winding-up - whether winding up by court start upon the presentation of the petition - winding up order results in cessation of the directors - to act on behalf of the company - appointment of a receiver - receiver appointed out of court the management and control of the company is taken over by them. Charge - delay to register a charge may render it void ab initio. Judgment - discretion - whether the judge rightly exercised his discretion in granting orders sought - the exercise of a judge’s discretion ought not to be lightly interfered with by a Court of Appeal save, only when error of judgement has occurred resulting in a wrong decision. A serious dispute arose between the only two directors and shareholders of the company leading to dead lock, which made it impossible for them to carry on the business of the company jointly. Despite the existence of serious conflict of facts the trial judge proceeded without hearing any evidence to resolve the conflict in the usual manner of first evidence in-chief, then cross examination, and if necessary re-examination. On appeal the parties agreed on remission for retrial. Held : 1. Where there are serious conflicts of facts and yet the Judge proceeded with a full hearing to reach a decision as to which facts are correct, the court has no choice but remit the petition back to the High Court for a hearing de nevo by another judge. 2. Where the court is unable with reasonable satisfaction to the court decide on the truth of the facts, it is better to proceed to full hearing. Cases No case referred to. Statutes No statute referred to. Advocates Satish Gautama Esq for Appellants Messrs Machira & Co Advocates for Respondents |
| History Advocates: | Both Parties Represented |
| Disclaimer: | The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information |
IN THE COURT OF APPEAL
AT NAIROBI
( Coram:Madan, Miller & Potter JJA )
CIVIL APPEAL NO. 13 OF 1981
BETWEEN
MUSA..............................................................................................APPELLANT
AND
LIFE AGENCIES INTERNATIONAL (KENYA) LTD..................RESPONDENT
JUDGMENT
Madan JA This is an appeal from a decision of Masime J who refused to make an order on the appellant’s petition compulsorily to wind up the company.
Three affidavits were filed, one by the petitioner in support of the petition, a replying affidavit by the only other director in the company, and a further affidavit by the petitioner.
The company was incorporated by the petitioner and the other director who were the only two directors and shareholders of the company each holding one share. Serious disputes occurred leading to a deadlock between them which, according to the petitioner, made it impossible to carry on the business of the company jointly.
The other director deponed that a meeting was held on a certain date when the petitioner was present, two new directors were appointed by consent of the parties. The petitioner denied all this in his further affidavit, his version being that such a meeting was never held. There arose a serious conflict of facts requiring determination of which party’s version was the correct one. The learned judge proceeded on the basis that such a meeting took place. He did not hear any evidence to resolve the conflict in the usual manner of first evidence-in-chief, then cross-examination, and if necessary re-examination. We find ourselves in this difficulty that we are unable to say with reasonable satisfaction of mind which set of facts is the correct one. Counsel agree that this difficulty exists in this case. Counsel also agreeing, we remit the petition for hearing de novo by another judge of the High Court, the costs of the fresh hearing to be in his discretion.
This agreed solution was reached at an early stage of hearing of the appeal before us. Mr Gautama had to come to this court. In the circumstances we give the appellant half costs of the appeal.
As Miller and Potter JJA agree, it is so ordered.
Dated and Delivered at Nairobi this 16th day of December 1981.
C.B.MADAN
..................................
JUDGE OF APPEAL
C.H.E.MILLER
..................................
JUDGE OF APPEAL
K.D.POTTER
..................................
JUDGE OF APPEAL
I certify that this is a true copy of
the original.
DEPUTY REGISTRAR
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