[2012] KEHC 482 (KLR)
The court found that the plaintiff's pleadings and submissions contained contradictory figures regarding the sum claimed, making it impossible to settle on any one amount without calling evidence. As a result, the court declined to enter summary judgment or strike out the defence, holding that the matter required a...
Source-derived case information.
- Citation
- [2012] KEHC 482 (KLR)
- Parties
- Plaintiff: Fin Razel Holidays Limited; Defendant: Tazmark Tours & Travel Ltd; Defendant: Titus Motinda Kaluti
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 294 of 2007
- Procedural Posture
- Civil Suit / Ruling on Application to Strike Out Defence and for Summary Judgment
- Outcome
- Application dismissed; matter to proceed to hearing.
- Judges
- CM Njagi, A Mabeya
- Legal Topics
- Summary Judgment, Striking Out Pleadings, Liquidated Claims
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fin Razel Holidays Limited
Plaintiff
Tazmark Tours & Travel Ltd
Defendant
Titus Motinda Kaluti
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Strike Out Defence and for Summary Judgment
Legal Issues
- 1 Whether the amended defence should be struck out for being frivolous and an abuse of court process.
- 2 Whether summary judgment should be entered for the plaintiff for the liquidated sum claimed.
Ratio Decidendi
The court found that the plaintiff's pleadings and submissions contained contradictory figures regarding the sum claimed, making it impossible to settle on any one amount without calling evidence. As a result, the court declined to enter summary judgment or strike out the defence, holding that the matter required a full hearing to resolve the factual disputes. The application was dismissed and the plaintiff was ordered to pay the costs of the application to the respondents.
Court Disposition
Application dismissed; matter to proceed to hearing.
Orders
- Application for summary judgment and striking out defence is declined.
- Parties to prepare the matter for hearing.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
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FIN RAZEL HOLIDAYS LIMITED………...………………….…...PLAINTIFF
VERSUS
TAZMARK TOURS & TRAVEL LTD………………………1ST DEFENDANT
TITUS MOTINDA KALUTI…………….…………………..2ND DEFENDANT
RULING
By this application, the Plaintiff prays for orders that the 1st and 2nd Defendants/Respondents’ amended defence be struck out for being frivolous and an abuse of the process of the court; that judgment for the liquidated sum of KShs. 5,405,146/= together with interest and costs, be entered in favour of the Applicant against the Defendants, jointly and severally. The application is brought by a Chamber Summons dated 24th October, 2007 and taken out under Order V Rule 3(1) (b) (c) and (d), Order L. Rule 7 of the Civil Procedure Rules, and Section 3A of the Civil Procedure Act.
Even without referring to the Respondent’s submissions, it is notable that in the original plaint dated 7th June, 2007 and filed in this matter on 12th June, 2007 the sum claimed was KShs. 3,726,060/=. The amended plaint dated 19th July, 2007 and filed on 20th July, 2007 claims the sum o KShs. 5,405,146/=. In the Plaintiff’s written submissions, it is argued that the total sum outstanding and payable by the defendants, jointly and severally, is KShs. 4,097,232. 97 inclusive of bank charges for dishonoured cheques.
In the light of these contradictory sets of figures, I find it difficult to settle on any one of them without calling evidence in proof. I therefore decline to enter summary judgment as prayed and instead direct that the parties do prepare the matter for hearing.
The Applicant will meet the Respondent’s costs of the application.
It is so ordered.
L. NJAGI
JUDGE
DATEDand DELIVEREDat NAIROBI this 19th day of November, 2012
MABEYA
JUDGE