[2000] KEHC 100 (KLR)
The court found that the plaintiff failed to provide sufficient evidence to demonstrate that the alleged transport services were rendered to the defendant at its request or that the charges were agreed or reasonable. The only evidence produced were invoices, which were not acknowledged by the defendant and were...
Source-derived case information.
- Citation
- [2000] KEHC 100 (KLR)
- Parties
- Plaintiff: Delons Limited; Defendant: Express Diaries Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 535 of ??
- Procedural Posture
- Civil Case / Application to Strike Out Defence and Enter Summary Judgment
- Outcome
- application dismissed
- Legal Topics
- Summary Judgment, Striking Out Defence, Contractual Services, Reasonable Charges
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Delons Limited
Plaintiff
Express Diaries Limited
Defendant
Procedural Posture
Civil Case / Application to Strike Out Defence and Enter Summary Judgment
Legal Issues
- 1 Whether the plaintiff has demonstrated by evidence that transport services were rendered to the defendant at its request.
- 2 Whether the charges claimed by the plaintiff were agreed or reasonable as averred in the plaint.
- 3 Whether the defendant's defence is a sham and should be struck out.
Ratio Decidendi
The court found that the plaintiff failed to provide sufficient evidence to demonstrate that the alleged transport services were rendered to the defendant at its request or that the charges were agreed or reasonable. The only evidence produced were invoices, which were not acknowledged by the defendant and were unsupported by any contract or signed delivery notes. As a result, the court could not conclude that the defendant's defence was a sham or that there was no triable issue. The application to strike out the defence and enter judgment for the plaintiff was therefore dismissed.
Court Disposition
application dismissed
Orders
- The application to strike out the defence and enter judgment for the plaintiff is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
11 paragraphs
High Court Of Kenya At Nairobi
Milimani Commercial Courts
Civil Case No 535 Of 2000
Delons Limited
versus
Express Diaries Limited
JUDGEMENT
October 16, 2000 T Mbaluto, Judge delivered the following judgment. This is an application to strike out the defence filed by the defendant in this matter and for judgment to be entered in favour of the plaintiff against the defendant as prayed in the plaint. The application has been brought under Orders 35 rule 1(a) and Order VI rule 13 (1) (b) and (d) of the Civil Procedure Rules and is supported by an affidavit sworn on June 12, 2000 by Lucy Wairimu Wamae, a director of the plaintiff company.
The plaintiff’s claim against the defendant is based on some alleged agreed or reasonable transport charges for milk and milk products provided by the plaintiff to the defendant at the defendant’s request and instance in 1998/1999. In its defence the defendant denies the claim in its entirely. Because of that denial it is incumbent upon the plaintiff to demonstrate by evidence that the services were indeed rendered and at the request of the defendant. It is also necessary for the same reason to demonstrate that the charges raised were agreed or are reasonable as averred in the plaint. In her affidavit in support of the application, Lucy Wairimu Wamae depones that the plaintiff’s claim arises out of a contract agreement to transport milk and milk products. She does not however produce any document to verify the alleged agreement or any signed delivery notes to show that the services in respect of which the claim is made were ever acknowledged by the defendant. All she does is to produce invoices sent by the plaintiff to the defendant which said invoices have not been acknowledged by the defendant.
In view of what I have stated above and particularly the lack of evidence in support of the application, I am unable to find that the defendant’s defence is a sham as alleged by the plaintiff or at all. For that reason, I must dismiss this application. As the defendant was not presented at the hearing of this application, there will be no orders as to costs. There will be orders accordingly.
T Mbaluto, Judge