[2014] KEHC 6130 (KLR)
The court held that while certain interim orders could be confirmed, the substantive issues in dispute, including the discharge of charge, require oral evidence for proper adjudication. Written submissions, while informative, cannot substitute for evidence given on oath. The defendant is directed to provide a...
Source-derived case information.
- Citation
- [2014] KEHC 6130 (KLR)
- Parties
- Plaintiff: Antony Thuo Kanai; Defendant: Cannon Assurance Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 54 of 2013
- Procedural Posture
- Civil Suit / Ruling on Originating Summons
- Outcome
- Partial grant of orders; matter set for full hearing.
- Judges
- DO Ogembo
- Legal Topics
- Mortgage Discharge, Loan Account Statement, Order 37 Procedure, Oral Evidence Requirement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Antony Thuo Kanai
Plaintiff
Cannon Assurance Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Originating Summons
Legal Issues
- 1 Whether the plaintiff is entitled to a discharge of charge over L.R. No. 15153/93, Kiambu.
- 2 Whether the defendant should be compelled to provide a correct and detailed statement of the loan account.
- 3 Whether evidence provided in written submissions can substitute oral evidence in this matter.
Ratio Decidendi
The court held that while certain interim orders could be confirmed, the substantive issues in dispute, including the discharge of charge, require oral evidence for proper adjudication. Written submissions, while informative, cannot substitute for evidence given on oath. The defendant is directed to provide a correct and detailed statement of the loan account to facilitate the hearing, and the matter is set down for full trial with parties to comply with pre-trial procedures under Order 11.
Court Disposition
Partial grant of orders; matter set for full hearing.
Orders
- Prayer number 2 of the Originating Summons dated 13th February 2013 is confirmed as previously granted.
- Prayer number 3 is allowed; the defendant is directed to prepare and deliver a correct and detailed statement of the loan account within 14 days.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL & ADMIRALTY DIVISION
Civil Suit No. 54 Of 2013
IN THE MATTER OF MORTGAGOR/CHARGOR AND MORTGAGEE/CHARGE
AND
IN THE MATTER OF PROPERTY KNOWN AS L.R. NO. 15153/93, KIAMBU
AND
IN THE MATTER OF DISCHARGE OF CHARGE
BETWEEN
ANTONY THUO KANAI ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF
- VERSUS -
CANNON ASSURANCE LIMITED :::::::::::::::::::::::::::::::::::::::::::::::::::::DEFENDANT
R U L I N G
Before the court is Originating Summons dated 13th February 2013filed under Order 37, Rule 14 of the Civil Procedure Rules, Section 84 (1) (a) (b) of the Land Act, Section 1A, 1B and 3A of the Civil Procedure Act. The application seeks upto 10 orders named therein and is based on the grounds set out therein.
The application is opposed vide the Replying Affidavit by MAINA MUKOMA dated 22nd February 2013 with annextures.
With the leave of the court the parties filed written submissions for the applicaton. The Applicant did that on 6th December 2013 while the Respondent filed theirs on 10th December 2013.
I have carefully considered the submissions of the parities. In particular the parties never made any oral submissions on the matter and created the impression that the matter at hand was a simple matter. However, having considered their written submissions, I have found that a lot of relevant information is being provided by way of written submissions while the same ought to have been given by oral evidence. If the parties believe in all that information contained in the submissions, then the parties must also agree that evidence cannot be given through submissions.
After very careful consideration of the application and submissions I make the following orders:-
I confirm prayer number 2 of the Originating Summons dated 13th February 2013 which this court granted on 26th February 2013.
I also allow prayer number 3 of the application and direct the Defendant/Respondent to prepare a correct and detailed statement of the loan account between it and the Applicant. That statement shall be delivered to court within 14 days from the date of this Ruling.
I direct that all other outstanding issues, including the discharge of the charge dated 22nd March 2012 shall abide full hearing of the matter through oral evidence of the parties.
I direct the parties to file and serve their lists of documents and statements of witnesses in compliance with Order 11 in readiness for trial on a date to be agreed on in court today.
DATED, READ AND DELIVERED AT NAIROBI THIS 17TH DAY OF MARCH 2014
E. K. O. OGOLA
JUDGE
PRESENT:
Thuo for Plaintiff
M/s Ngonde for Defendant
Teresia – Court Clerk