Court declines to revive Mumias insolvency suit


Entrance gate at Mumias sugar company. FILE PHOTO | ISAAC WALE | NMG

The High Court has declined to reinstate an insolvency suit against Mumias Sugar Company as sought by a lawyer who claimed she was threatened and blackmailed to withdraw the case.

Justice Josephine Mong’are ruled that the court does not have the power to reinstate a suit once it has been withdrawn. According to the judge, the only available option for lawyer Jackline Kimeto is to file a fresh case.

Ms Kimeto had claimed she was threatened, and coerced and filed the notice to withdraw the matter under extreme duress on September 1.

She, however, rescinded the decision a day later and wrote to the Deputy Registrar of the High Court, recalling the notice.

“In the case before me, the Petitioner filed a Notice of Withdrawal of Suit to this petition and the Petition in E007 of 2019 on 1st September 2023 and immediately served the same upon all parties to the suit. Effectively upon the service of the said notice, the petition herein stood withdrawn,” the judge said.

The judge said courts can only properly determine matters brought before them by parties to a suit, and a notice of withdrawal of suit effectively takes away the court’s jurisdiction or power to determine anything else filed thereafter.

“An application to reinstate a suit after the same has been withdrawn as provided under Order 25 of the Civil Procedure Rules, the same cannot therefore be sustained,” the judge ruled.

Ms Kimeto filed the insolvency petition against the troubled miller in 2019 after Mumias Sugar failed to pay her a debt of Sh76 million.

She also petitioned the court to appoint an administrator and Ponagipalli Venkatta Ramama Rao, the KCB appointed receiver manager, was tasked with identifying an investor to revive the miller but was later kicked out by the court for bungling the process and KCB challenged his removal.

Ms Kimeto filed the notice of withdrawing the suit soon after President William Ruto fired a warning on unnamed sugar cartels in August.

The lawyer said billionaire Jaswant Rai offered to settle her debt as a condition for withdrawing the insolvency petition against the miller.

She filed the notice only to change her mind a day later, arguing it was a product of blackmail.

“In fear of my life and all the threats that I was receiving, I filed and paid for a notice of withdrawal dated 1st September, 2023 in HC IP E004 of 2019 on the understanding that my debt would be settled within 1 hour of the said notice being filed as indicated,” Ms Kimeto said.

She added that although the debt has never been settled even after filing the notice for withdrawal, and that she considered the plan to settle the debt a product of blackmail by state agents.

The judge said Order 25 of the Civil Procedure Rules is silent on the mode of reinstating a suit once the petitioner files a notice of withdrawal of a suit.

“..And once a suit is discontinued in whichever manner howsoever, it ceases to exist. A party cannot breathe life into it by whichever means, not even a consent setting aside the orders of withdrawal,” the judge added.

Other creditors who had joined the case were Vartox Resources Inc, Khaminwa & Khaminwa Advocates and Wekesa & Simiyu Advocates.

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