[2007] KEHC 534 (KLR)
The court found that the defendant had conceded to the execution of the three agreements for the refund of the sums paid by the plaintiff for the purchase of properties, which sales did not materialize. The only issue left was the sum due, which was agreed to be KES 5,764,270 as per the agreements. The defendant's...
Source-derived case information.
- Citation
- [2007] KEHC 534 (KLR)
- Parties
- Plaintiff: Ann Chepkorir Atuya; Defendant: Harun Komen Tuitoek
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 839 of 2006
- Procedural Posture
- Civil Suit / Ruling on Notice of Motion for Judgment on Admission And/or Striking Out Defence
- Outcome
- judgment for the plaintiff
- Judges
- KH Rawal
- Legal Topics
- Judgment on Admission, Striking Out Defence, Contractual Refund, Summary Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ann Chepkorir Atuya
Plaintiff
Harun Komen Tuitoek
Defendant
Procedural Posture
Civil Suit / Ruling on Notice of Motion for Judgment on Admission And/or Striking Out Defence
Legal Issues
- 1 Whether the plaintiff is entitled to judgment on admission based on the executed agreements for refund of purchase sums.
- 2 Whether the defendant's statement of defence discloses any triable issue or is an abuse of court process.
Ratio Decidendi
The court found that the defendant had conceded to the execution of the three agreements for the refund of the sums paid by the plaintiff for the purchase of properties, which sales did not materialize. The only issue left was the sum due, which was agreed to be KES 5,764,270 as per the agreements. The defendant's statement of defence was a mere denial and did not raise any triable issue or explain how, after admitting the agreements, he could deny liability. The court held that the defence was an abuse of the court process, intended only to delay the plaintiff's just claim. Accordingly, judgment was entered in favour of the plaintiff as prayed, with costs and interest.
Court Disposition
judgment for the plaintiff
Orders
- Judgment is entered in favour of the plaintiff as prayed for the sum of KES 5,764,270 with costs and interest.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Suit 839 of 2006
ANN CHEPKORIR ATUYA …………………………….PLAINTIFF
VERSUS
HARUN KOMEN TUITOEK …………………………DEFENDANT
R U L I N G
The Notice of Motion dated 23rd April, 2007 seeks orders for Judgment on admission or in the alternative for striking out of the Statement of defence and Judgment be entered. The application is filed under the provisions of order XII Rule 6, Order VI Rule 13(1) (b) and (c) and Order XXXV Rule 1(2) of Civil Procedure Rules and also under section 3A of the Civil Procedure Act and all other enabling provisions of law.
The application is not responded by either filing replying affidavit or the grounds of opposition. The learned counsel for the Defendant simply relied on the Statement of Defence dated 5th April 2006.
The application is supported by the Plaintiff’s supporting affidavit sworn on 23rd April, 2007 and on the grounds set forth on the face thereof.
The Plaintiff’s claim is for the refund of the sums paid to the Defendant for the purchase of some properties. The sales did not materialize and the parties entered into the agreements thereafter for refund out which two are dated 28th October 2003, and third is dated 23rd May, 2002.
On 18th September 2007 when the application was to be heard, the counsel of the parties recorded the consent order that the parties have agreed that the three agreements were executed between them. The only issue they wanted to settle was the sum due. On 1st October 2007 when the matter was before me they agreed to hear the application on the issue of sum due and payable.
The learned counsel for the Plaintiff/Applicant relied on the agreed argreements and the total sum as per those agreements comes to Shs.5,764,270/= which is the claimed sum.
The statement of defence merely denies that the Defendant owes the Plaintiff the said sum. The Defendant does not show how after he conceded the execution of the agreements, he still maintains his denial.
In short, I am satisfied that the Defence filed by the Defendant is an abuse of court process and is so filed only to delay the just claim of the Plaintiff.
I thus allow the Notice of Motion dated 23rd April, 2007 by grating the order that the Judgment be entered in favour of the Plaintiff as prayed with costs and interest.
Dated, Delivered and Signed at Nairobi this 12th day of October, 2007.
K.H. RAWAL
JUDGE