[2010] KEHC 361 (KLR)
The court found that the defendants' statement of defence was a bare, general denial that did not raise any triable issues warranting a full trial. The defendants failed to file any response to the application, either by way of grounds of opposition or replying affidavit, and did not appear at the hearing. The court...
Source-derived case information.
- Citation
- [2010] KEHC 361 (KLR)
- Parties
- Plaintiff: Ann Wanjiku Gachie; Plaintiff: Pity Wanjiru Gachie; Defendant: Mwai Wamugunda; Defendant: Michael Mutugi Gacheru
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 97 of 2009
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Defence and Enter Interlocutory Judgment
- Outcome
- Application allowed. Defendants' defence struck out. Interlocutory judgment entered for plaintiffs as prayed in the plaint. Costs awarded to applicants.
- Judges
- J Karanja
- Legal Topics
- Striking Out of Defence, Interlocutory Judgment, Unopposed Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ann Wanjiku Gachie
Plaintiff
Pity Wanjiru Gachie
Plaintiff
Mwai Wamugunda
Defendant
Michael Mutugi Gacheru
Defendant
Procedural Posture
Civil Case / Ruling on Application to Strike Out Defence and Enter Interlocutory Judgment
Legal Issues
- 1 Whether the defendants' statement of defence should be struck out for failing to raise triable issues.
- 2 Whether interlocutory judgment should be entered for the plaintiffs as prayed in the plaint.
- 3 Whether the lack of response to the application amounts to admission of the plaintiffs' claims.
Ratio Decidendi
The court found that the defendants' statement of defence was a bare, general denial that did not raise any triable issues warranting a full trial. The defendants failed to file any response to the application, either by way of grounds of opposition or replying affidavit, and did not appear at the hearing. The court held that the lack of response amounted to an admission of the facts stated in the supporting affidavit and annexures. Consequently, the court allowed the application to strike out the defence and granted interlocutory judgment for the plaintiffs as prayed in the plaint, together with costs.
Court Disposition
Application allowed. Defendants' defence struck out. Interlocutory judgment entered for plaintiffs as prayed in the plaint. Costs awarded to applicants.
Orders
- The defendants' statement of defence dated 27.07.09 is struck out.
- Interlocutory judgment is entered for the plaintiffs as prayed in the plaint.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
CIVIL CASE NO. 97 OF 2009
ANN WANJIKU GACHIE..………..........................................................................................……………..……1ST PLAINTIFF
PITY WANJIRU GACHIE………….......................................................................................………………….2ND PLAINTIFF
VERSUS
MWAI WAMUGUNDA…………....................................................................................………..………….1ST DEFENDANT
MICHAEL MUTUGI GACHERU……....................................................................................………………2ND DEFENDANT
R U L I N G
The Application dated 18. 12. 09 is seeking orders for striking out the Defendants/Respondents statement of defence dated 27. 07. 09. The Applicant is also asking the court to enter interlocutory judgment for the plaintiffs as prayed in the plaint.
The Application was served on Fatuma Wanjiku who was then on record for the Respondents.
It is noted however that no response to the application was ever filed either by way of grounds of opposition or vide a replying Affidavit.
The Application is therefore basically not opposed. On the date fixed for its hearing, non of the respondents was present. The court therefore allowed counsel for the Applicant to proceed exparte.
I have noted the contents of the affidavit in support of the Application and the annexures thereto.Surely, these are deponments and annexures that ought to have elicited some response from the Respondents. The fact that they did not respond to the same clearly shows that they admit the contents therein.
I have considered their defence, as rightly stated by counsel for the Applicant, the same is just a bare, general denial and it does not amount to much.
Indeed it raises no triable issues at all which would necessitate the matter to proceed to full trial. For this reason and the fact that the Application is not contested, I allow the chamber summons dated 18. 12. 09 and grant the orders prayed therein plus costs to the Applicants.
W. KARANJA
JUDGE
Delivered, signed and dated at Embu this 22nd day of November 2010
In presence of:- Mr. Muchira for Plaintiffs/Applicants N/A by Respondents.