Lamshore ltd & two others vs Bizanje K.U.D.K

 The application before this Court is a Notice of Motion dated  14th November 2013 it is brought Under Order 1, 22, and 51 of the Civil Procedure Rules, 2010, and section 10 (2) of the Foreign Judgments (Reciprocal Enforcement) Act, Chapter 43 of the Laws of Kenya and Rule 6 of the Foreign Judgments (Reciprocal Enforcement) Rules, Section 4 of the privileges and Immunities Act Chapter 179 of the Laws of Kenya, Article 21 and 22 of Vienna Convention on Diplomatic Relations, section 3A, 63E  of the Civil Procedure Act Chapter 21 Laws of Kenya and All Enabling Provision of the Law

The applicant seeks the following orders;

1.  The Government of the United Republic of Tanzania be enjoined as an Interested Party in these proceedings.

2.  There be a stay of the execution of the Ex-parte order for attachment of subject matter L.R. 209/13678 at Nairobi issued by the Honourable Court and all consequential orders thereto pending the hearing and determination of this application inter-parties.

3.  There be a stay of execution of the ex-parte prohibitory order issued by this Honourable Court on 3rd May, 2012 and all consequential orders thereto pending hearing and determination of this Application inter-parties.

4.  The Ex-parte Order issued by this Honourable Court on 4th November, 2011 be and is hereby vacated and/or set aside.

5.  The Ex-parte order for attachment of the subject matter L.R. 209/13678 at Nairobi issued by this Honourable Court be and is hereby set aside.

6.  That the Ex-parte Prohibitory order issued by this Honourable Court on 3rd May, 2012 be and is hereby set aside.

7.      The cost of this application be provided for

This application is premised on the following grounds:

  1. That the land parcel LR 209/13678 situate within Nairobi in Kenya, the subject of these proceedings is the property of the Tanzania High Commission of the Government of the United Republic of Tanzania, in Kenya hence the Government of the United Republic of Tanzania is an interested party.
  1. That hitherto the proceedings have proceeded without due notice to the Government of the United Republic of Tanzania, the rightful owner of the said property.
  1. That it is necessary and paramount to enjoin the Government of the United Republic of Tanzania as an Interested Party of these proceeding in order to enable the court effectively and completely to adjudicate upon and settle all questions involved in this application/suit.
  1. That the Government of the United Republic of Tanzania ought to be enjoined as an Interested Party as any order emanating therefrom relating to the said land parcel will adversely affect its existing rights and interests without re-course.
  1. That the Honourable Court issued an order ex-parte on 4th November, 2011 registering a foreign judgment delivered on 31st   January, 2000 in Civil Suit No. 13 of 1994 in High Court for Zanzibar.
  1. That consequential upon the  said registration of a foreign judgments the Honourable Court gave Ex-parte orders of Attachment and Prohibitory for attaching the said land parcel L.R. No. 209/13678 at Nairobi and Prohibiting and restraining the Government of the United Republic of Tanzania from interfering or charging with it.
  1. That the decree holder contravened domestic procedures for execution of a decree against the Government as provided for in the Civil Procedure (Principal Legislation) Chapter 8 Laws of Zanzibar as read with the provisions of Foreign Judgment (Reciprocal Enforcement) Act and Rules chapter 43 Laws of Kenya.
  1. That the foreign judgment delivered on 31st January, 2000 in Civil Suit No. 13 of 1994 in the High Court for Zanzibar is not enforceable as against the Government of the United Republic of Tanzania.
  1. That in any event the said order contravenes the principle of inviolability of diplomatic premises as envisaged by provision of the Privileges and Immunities Act, Chapter 176 of the Laws of Kenya and the Vienna Convention on Diplomatic and Consular Relations of 1961.
  1. That the Revolutionary Government of Zanzibar and the Government of the United Republic of Tanzania are two separate legal entities in terms of civil liability depending on the nature of the commercial transaction and the party to that particular transaction.
  1. That pursuant to the application before this court for setting terms and condition for sale of the land property L.R. 209/13678, the said land parcel is now under imminent danger of disposal to the detriment of the Government of the United Republic of Tanzania.
  1. That it is equitable that an order of stay be granted in the circumstances of this case.

The application is supported by the affidavit of, INNOCENT EUGENE SHIYO  dated 14th November 2013, a further affidavit by Mr. I. E Shiyo dated 3rd December sworn in response to the replying affidavit of Mr. E. T Mugacha the 1st interested party and  a further affidavit  of Mr.  I. E. Shiyo dated 19th December 2013 in response to the affidavit of Lamshore Limited the decree holder /applicant. The application was opposed. The 1st interested party filed a replying affidavit dated 22nd November 2013. The plaintiff/ respondent filed an affidavit dated 6th December 2013 sworn by Mr. James Kinyanjui, the 2nd plaintiff who is a director of the 1st plaintiff/ Decree Holder.

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