[2012] KEHC 3649 (KLR)
The court found that the Defendant had admitted the existence of the contractual arrangement and the loan facility in the Amended Plaint, and that the Amended Defence did not raise any triable issue or reasonable defence in law. The court held that the Amended Defence was a sham, intended to delay the finalization...
Source-derived case information.
- Citation
- [2012] KEHC 3649 (KLR)
- Parties
- Plaintiff: African Banking Corporation Ltd.; Defendant: Joseph Mboya Mathew
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 15 of 2008
- Procedural Posture
- Civil Case / Ruling on Notice of Motion to Strike Out Amended Defence and Enter Judgment
- Outcome
- Application allowed; Amended Defence struck out; judgment entered for Plaintiff as prayed.
- Judges
- DO Ogembo
- Legal Topics
- Striking Out Pleadings, Hire Purchase Agreements, Summary Judgment, Loan Default, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
African Banking Corporation Ltd.
Plaintiff
Joseph Mboya Mathew
Defendant
Procedural Posture
Civil Case / Ruling on Notice of Motion to Strike Out Amended Defence and Enter Judgment
Legal Issues
- 1 Whether the Amended Defence discloses any reasonable defence in law.
- 2 Whether the Amended Defence is scandalous, vexatious, or an abuse of the court process.
- 3 Whether the Plaintiff is entitled to judgment as prayed in the Amended Plaint.
Ratio Decidendi
The court found that the Defendant had admitted the existence of the contractual arrangement and the loan facility in the Amended Plaint, and that the Amended Defence did not raise any triable issue or reasonable defence in law. The court held that the Amended Defence was a sham, intended to delay the finalization of the suit, and met the grounds for striking out under Order 2 Rule 15(1) of the Civil Procedure Rules. Consequently, the court struck out the Amended Defence and entered judgment as prayed in the Amended Plaint in favour of the Plaintiff for the liquidated sum claimed, together with interest and costs.
Court Disposition
Application allowed; Amended Defence struck out; judgment entered for Plaintiff as prayed.
Orders
- The Amended Defence filed by the Defendant on 21st September 2011 is struck out.
- Judgment is entered as prayed in the Amended Plaint in favour of the Plaintiff against the Defendant.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI LAW COURTS)
CIVIL CASE 15 OF 2008
AFRICAN BANKING CORPORATION LTD.:::::::::::::::::::::::::::::PLAINTIFF
- VERSUS -
JOSEPH MBOYA MATHEW::::::::::::::::::::::::::::::::::::::::::::::::::::DEFENDANT
R U L I N G
1. The application before the court is a Notice of Motion dated 9th March 2012. It is brought under Order 2 Rules 15 (1) (c)and(d)and51 Rule 1of theCivil Procedure Rules, 2010, and Sections 1A, 1Band3Aof theCivil Procedure Act. The application seeks that the court be pleased to strike out the Amended Defence filed by the Defendant herein, and to enter judgement against the Defendant herein in favour of the Plaintiff. The application is supported by an affidavit of GREGORY OMUSOLO dated 9th March 2012.
2. The Application is not opposed. It was served upon the Defendant on 14th March 2012 and an Affidavit of Service was filed in court on 17th April 2012.
3. The Application is premised on the following grounds, namely:-
(a)The Plaintiff’s claim is liquidated one and founded on a Hire Purchase Agreement between the Defendant on the one part and the Plaintiff on the other part.
(b)The Defendant in breach of his contractual obligation to the Plaintiff reneged on his obligation to pay monthly installments hence the indebtedness.
(c)The Defendant is well and truly indebted to the Plaintiff in the sum of Kshs.3,309,736. 00 in respect of facilities granted to him together with interest thereon at the rate of 11% flat per annum from 30. 5.2010 until payment in full and was so indebted at the commencement of the suit.
(d)The Amended Defence filed by the Defendant may prejudice, embarrass or delay the fair trial of this matter.
(e)The Amended Defence is otherwise an abuse of the process of this Honourable Court.
(f)Such other and further grounds and reasons as shall be adduced at the hearing hereof.
4. I have considered the application. In my view, the Defendant has admitted paragraph 3 of the Amended Plaint. This paragraph establishes the contractual arrangement between the parties and the loan facility advanced of Kshs.5,000,000/=. All other paragraphs draw their significance from paragraph 3 of the Amended Plaint. Paragraphs 4, 5, and 6 of the Amended Plaint are merely narrating consequential events. In my view, the Amended Defence is a mere defence and a sham intended to delay the finalization of the suit. Under Order 2 Rule 15 (1) this court has the power to strike out a defence on the grounds that it discloses no reasonable defence in law or that it is scandalous and vexatious or that it may prejudice, embarrass or delay the fair trial of the action or that it is otherwise an abuse of the process of the court. The Amended Defence herein meets all the above grounds.
5. I allow the application and herewith strike out the Amended Defence filed by the Defendant herein on 21st September 2011. I also enter judgement as prayed in the Amended Plaint in favour of the Plaintiff against the Defendant.
6. The costs of this application and of the suit shall be for the Plaintiff.
It is so ordered.
DATED, READ AND DELIVERED AT NAIROBI
THIS 2ND DAY OF JULY 2012.
E. K. O. OGOLA
JUDGE
PRESENT:
M/s Wambugu H/B for Luseno for the Plaintiff
N/A for the Defendant
Teresia – Court Clerk