[2008] KEHC 1364 (KLR)
The court found that the defendant failed to serve its statement of defence within the time prescribed by Order VIII rule 1(2) of the Civil Procedure Rules. The explanation offered by the defendant, attributing the failure to human error, was not sufficient to excuse non-compliance with mandatory procedural...
Source-derived case information.
- Citation
- [2008] KEHC 1364 (KLR)
- Parties
- Plaintiff: Co-operative Insurance Company of Kenya Limited; Defendant: City Council of Nairobi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 37 of 2008
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Defence and Enter Judgment
- Outcome
- judgment for plaintiff; defence struck out
- Legal Topics
- Striking Out Defence, Default Judgment, Liquidated Claims, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Co-operative Insurance Company of Kenya Limited
Plaintiff
City Council of Nairobi
Defendant
Procedural Posture
Civil Case / Ruling on Application to Strike Out Defence and Enter Judgment
Legal Issues
- 1 Whether the defendant's failure to serve the statement of defence within the prescribed period renders the defence incompetent.
- 2 Whether the plaintiff is entitled to judgment for the liquidated sum claimed due to the defendant's procedural default.
Ratio Decidendi
The court found that the defendant failed to serve its statement of defence within the time prescribed by Order VIII rule 1(2) of the Civil Procedure Rules. The explanation offered by the defendant, attributing the failure to human error, was not sufficient to excuse non-compliance with mandatory procedural requirements. Upon perusal, the defence contained only simple denials and lacked substance. Consequently, the court held that the statement of defence was incompetent and should be struck out. With no valid defence on record, and the claim being for a liquidated sum, the court entered judgment for the plaintiff as prayed in the plaint, together with costs and interest at court rates...
Court Disposition
judgment for plaintiff; defence struck out
Orders
- The statement of defence filed by the defendant is struck out and expunged from the record.
- Judgment is entered for the plaintiff against the defendant as prayed in the plaint, for the sum of Kshs9,092,853, plus costs and interest at court rates until payment in full.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Case 37 of 2008
CO-OPERATIVE INSURANCE COMPANYOF KENYA LIMITED …..….PLAINTIFF
VERSUS
CITY COUNCIL OF NAIROBI ……….............................….……………. DEFENDANT
R U L I N G
Application dated 14/4/2008 seeking orders under provisions of Order VIII rule 1 (2) which states:
“where a defendant has been served with a summons to appear he shall, unless some other or further order be made by the court, file his defence within 15 days after he has entered an appearance in the suit and serve it on the plaintiff within seven days from the date of filing the defence.”
The respondent breached this order by failing to comply. The applicant has also invoked Section 3 and 3A of the Civil Procedure Act inherent powers of court and Order IXA rule 3, 9 and 11. Order IXA 2 permits the court to enter judgment in claims of liquidated sums where defence or appearance have not been filed. The applicant therefore seeks to strike out the defence for non service and enter judgment in the sum of Kshs9,092,853/= together with costs and interest. The application is supported by affidavit of Joseph Gatiko.
The defendant admits that the service of statement of defence was not effected according to the rules. He attributes the failure to human error. I have perused the defence and it is clear the same contains simple denials and does not show any substance.
In the circumstances I find the application is with merit. The statement of defence is incompetent for failure to comply with Order VIII 1 (2) and the same is struck out and expunged from the record. There being no merit or substance in the statement of defence judgment is entered for plaintiff against the defendant as prayed in the plaint plus costs and interest at court rates until payment in full.
The costs of this application shall go to the applicant.
It is so ordered.
DATED and DELIVEREDat Nairobi this 7th day of October 2008
JOYCE N. KHAMINWA
JUDGE