[2001] KEHC 419 (KLR)
The court found that the 1st defendant's defence was a sham, raising no triable issues and serving only to delay the recovery of the debt. Based on the affidavit evidence and supporting documents, the court was satisfied that the 1st defendant was truly and justly indebted to the plaintiff in the sum of...
Source-derived case information.
- Citation
- [2001] KEHC 419 (KLR)
- Parties
- Plaintiff: Co-operative Bank of Kenya Limited; Defendant: John Mwenja Ngumba; Defendant: Farm Fresh Commodities Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 195 of ??
- Procedural Posture
- Civil Suit / Summary Judgment Application
- Outcome
- summary judgment entered for plaintiff against 1st defendant
- Judges
- T Mbaluto
- Legal Topics
- Summary Judgment, Credit Facility Disputes, Joint and Several Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Co-operative Bank of Kenya Limited
Plaintiff
John Mwenja Ngumba
Defendant
Farm Fresh Commodities Limited
Defendant
Procedural Posture
Civil Suit / Summary Judgment Application
Legal Issues
- 1 Whether the 1st defendant is truly and justly indebted to the plaintiff in the sum claimed.
- 2 Whether the defence filed by the 1st defendant raises any triable issues or is a mere denial intended to delay judgment.
- 3 Whether summary judgment should be entered against the 1st defendant under Order 35 Rule 1 of the Civil Procedure Rules.
Ratio Decidendi
The court found that the 1st defendant's defence was a sham, raising no triable issues and serving only to delay the recovery of the debt. Based on the affidavit evidence and supporting documents, the court was satisfied that the 1st defendant was truly and justly indebted to the plaintiff in the sum of Kshs.547,267.80 as at 24th June 1998. Accordingly, summary judgment was entered in favour of the plaintiff against the 1st defendant as prayed in the plaint.
Court Disposition
summary judgment entered for plaintiff against 1st defendant
Orders
- Judgment is entered in favour of the plaintiff against the 1st defendant for Kshs.547,267.80 as prayed in the plaint.
Full Case Text
Judgment text and source record
18 paragraphs
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. 195 OF 2000
CO-OPERATIVE BANK OF KENYA LIMITED ……….. PLAINTIFF
VERSUS
JOHN MWENJA NGUMBA ………………………… 1ST DEFENDANT
FARM FRESH COMMODITIES LIMITED ………. 2ND DEFENDANT
RULING
This is an application for summary judgment against the 1st defendant under Order 35 Rule 1 of the Civil Procedure Rules. The application is based on the following grounds:-
1. That the defendants are jointly and severally truly and justly indebted to the plaintiff in the sum of Kshs.547,267. 80 claimed in the plaint;
2. That the defence filed by the 1 st defendant herein is a mere denial aimed at delaying the judgement hereof. It raises no triable issues. It should be struck off and judgement ente red for the plaintiff as prayed;
3. That the liability of the defendants to the plaintiff is joint and several;
4. That the 2 nd defendant has been placed under receivership and the plaintiff being an unsecured creditor, has no chance of recovering the money from it.
The application is supported by an affidavit sworn on 11. 4.2001 by Listone Mwamburi, the manager in charge of the Co-op Card Credit Centre. The affidavit reveals that the 1st defendant was issued with a Co-op Credit Card No. 4797 404 0000 2413 in respect of which the sum of Shs.547,267/80 was outstanding as at 24. 6.1998. Having looked at the defence filed herein by the defendant, I am of the opinion that it does not answer the plaintiff’s claim. In my judgment it is a sham which raises no triable issues and is only aimed at delaying the recovery of the debt.
On the basis of the evidence contained in the affidavit filed herein in support of the application together with the annexures thereto; I am satisfied that the 1st defendant is truly and justly indebted to the plaintiff in the sum of Shs.547,267/80 as at 24. 6.1998. Accordingly, judgment is entered in favour of the plaintiff against the 1st defendant as prayed in the plaint.
Dated at Nairobi this 8th day of June, 2001.
T. MBALUTO
JUDGE