[2013] KEHC 4682 (KLR)
The court declined to strike out the 2nd defendant's defence, holding that striking out a defence is a drastic measure that should only be applied in clear cases. Since the 2nd defendant had filed a defence, it was only fair and just to allow them an opportunity to appear in court and plead their case. The court...
Source-derived case information.
- Citation
- [2013] KEHC 4682 (KLR)
- Parties
- Plaintiff: C. Mehta & Company Limited; Plaintiff: Mehul Investments Ltd.; Defendant: Rohit K. C. Doshi; Defendant: Ahmedali Jiwaji
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 240 of 2011
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Defence
- Outcome
- Application to strike out defence dismissed.
- Judges
- JV Juma
- Legal Topics
- Striking Out of Defence, Default Judgment, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
C. Mehta & Company Limited
Plaintiff
Mehul Investments Ltd.
Plaintiff
Rohit K. C. Doshi
Defendant
Ahmedali Jiwaji
Defendant
Procedural Posture
Civil Case / Ruling on Application to Strike Out Defence
Legal Issues
- 1 Whether the 2nd defendant's statement of defence should be struck out.
- 2 Whether judgment should be entered against the 2nd defendant as prayed in the plaint.
- 3 Whether the 2nd defendant should be allowed to defend the suit.
Ratio Decidendi
The court declined to strike out the 2nd defendant's defence, holding that striking out a defence is a drastic measure that should only be applied in clear cases. Since the 2nd defendant had filed a defence, it was only fair and just to allow them an opportunity to appear in court and plead their case. The court emphasized the importance of not shutting out a party from the seat of justice without giving them a chance to be heard. The application to strike out the defence was therefore dismissed, and the plaintiffs were directed to set the matter down for hearing and serve the 2nd defendants accordingly. Costs of the application were awarded to the applicant.
Court Disposition
Application to strike out defence dismissed.
Orders
- The application to strike out the 2nd defendant's statement of defence is declined.
- Plaintiffs to set the matter down for hearing and serve the 2nd defendants accordingly.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
High Court at Mombasa
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1. C. MEHTA & COMPANY LIMITED
2. MEHUL INVESTMENTS LTD.…………............……….….PLAINTIFFS
VERSUS
1. ROHIT K. C. DOSHI
2. AHMEDALI JIWAJI…….....………………………….….DEFENDANTS
RULING
Before court is the notice of motion application dated 10th December, 2012 in which the applicant prays for orders that:
“1. The 2nd defendant’s statement of defence dated 7th October, 2011 be struck out and judgment be entered against the 2nd defendant as prayedfor in the plaint.
2. The costs of this application.”
MR. ANZALAAdvocate argued the application on behalf of the applicant. The 2nd defendant/respondent despite having been served were not represented in court.
I have considered the application as well as the supporting affidavit annexed thereto. I have also perused the defence filed in court by the 2nd defendant on 17th October, 2011. The prayer being so right i.e. a striking out of a defence is a drastic measure which courts are reluctant to apply as it amounts to shutting out one party from the seat of justice. The 2nd defendants have filed a defence thus indicating their intention to defend the suit against them. It is only fair and just that they be allowed an opportunity to appear in court and plead his case. I therefore decline to strike out the defence as prayed. The plaintiffs to set the matter down for hearing and serve the 2nd defendants accordingly. The costs of this application will be met by the applicant.
Dated and delivered in Mombasa this 21st day of March, 2013.
M. ODERO
JUDGE
In the presence of:
Ms. Adagi h/b Mr. Anzala for Plaintiff/Applicant
No appearance for Defendant/Respondent
Court Clerk Mutisya