Africa-Press – Tanzania. WELLWORTH Hotels and Lodges Limited, a hotel business operating company, has once again lost the commercial case against five Kenyan registered companies, demanding over 4.2bn/- for allegedly breach of contract on installation of mobile tented camps in various national parks in Tanzania.
This followed the decision of the High Court’s Commercial Division to “struck” out the commercial suit lodged by Advocate Yasin Maka from Stallion Attorneys against the Kenyan defendant companies. Judge Deo Nangela condemned Wellworth Hotels and Lodges Limited to pay costs of the suit.
He allowed a set of preliminary objections raised by the Kenyan defendant companies, East Africa Canvans Co. Ltd, which is a company duly registered under the Laws of the Republic of Kenya and its shareholder, Stirling Arving Horsely, Robert James Flowers, Gary Mcintyre and Eco –Steel Africa Ltd.
The objections to the suit in question were consented to by Advocate Winjaneth Lema, for Wellworth Hotels and Lodges Limited that the plaint does not disclose any cause of action against the defendants and were defective for contravening the provisions of Order VI Rule 15(3) of the Civil Procedure Code.
Advocate Winjaneth Lema had requested the court for withdrawal of the suit without costs and with leave to re-file the same, a prayer which was vehemently opposed by Advocate Heriel Munisi, for the defendants.
He pressed for costs, arguing that, initially, the defendants were dragged into Court by Wellworth Hotels and Lodges Limited in Commercial case No.5 of 2020 which was struck out and later the same case was re-filed as Commercial case No.107 of 2020. The counsel urged the Court to grant an order for costs.
Briefly, Ms Lema maintained her plea for award of no costs. She rejoined that, much as she agrees that the suit was previously filed as Commercial Case No.5 of 2020 and the same was struck out by the same Court, the suit was re-filed by Mr Maka, advocate, who was, by then, the leading counsel.
In his short ruling, the Judge made it clear that, once the parties have filed their respective pleadings and the defendants have raised preliminary objections, the Plaintiff could not ask for a withdrawal of the suit from the Court even if that is his or her suit.
“To allow a withdrawal after the preliminary objections have been dully filed and ready to be argued, would mean that the withdrawal was prompted by the objections filed by the defendants and, hence technical attempt to pre-empty the objections already filed in court,” he said.
In the suit, the Wellworth Hotels and Lodges Limited, the plaintiff, was seeking for, among others, a declaratory order that the defendants have breached the contract entered between East Africa Canvans Co. Ltd and them.
The plaintiff company also pushes for 100m/- payments as special damages for the business frustration caused, a full reimbursement of 443,508.60 US dollars, as well as 1,357,045.18 US dollars as special damages for losses incurred plus some interests thereon.
This is the second time the plaintiff is losing the case before the same court. In the first instance, the court rejected the suit after upholding one ground of objection lodged by the defendants in that the suit was lodged by unqualified advocate.
“The second issue regarding whether Mr. (Yasin) Maka was a qualified advocate when he prepared and filed the Plaint in this Court is answered in the negative. That, the Plaint filed in this Court is hereby struck out for having been filed by unqualified person,” the judge declared in his first ruling.
He noted, among others, that it was clear, in his view, that, Mr Maka, the advocate who drafted and filed the Plaint in Court on January 20, 2020 had not renewed his practicing certificate. The counsel for the plaintiff had submitted that such matter was not a point of law as needed evidence to be proved.
The judge, however, on such position had this to say, “I do not think that this is an issue that needs one to call for evidence. No one needs to prove that which is obvious.” Judge Nangela referred to the website of the Judiciary of Tanzania which indicates records of all practicing advocates in the country.
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