[2012] KEHC 2338 (KLR)
The court found that the plaintiff's application to strike out the defence and enter judgment was meritorious and allowed it, awarding the sum claimed. The omission to expressly award costs to the plaintiff was deemed an accidental slip, curable under section 99 of the Civil Procedure Act. Since costs follow the...
Source-derived case information.
- Citation
- [2012] KEHC 2338 (KLR)
- Parties
- Plaintiff: FINA BANK LIMITED; Defendant: FRANCIS GITAU KOMU T/A BOMAS MOTOR MART
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 318 of 2010
- Procedural Posture
- Civil Suit / Ruling on Application for Judgment and Costs
- Outcome
- Judgment entered for the plaintiff; costs awarded to the plaintiff.
- Judges
- GV Odunga
- Legal Topics
- Striking Out of Defence, Entry of Judgment, Award of Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
FINA BANK LIMITED
Plaintiff
FRANCIS GITAU KOMU T/A BOMAS MOTOR MART
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Judgment and Costs
Legal Issues
- 1 Whether the defendant's statement of defence should be struck out and judgment entered for the plaintiff.
- 2 Whether the plaintiff is entitled to costs of the suit.
Ratio Decidendi
The court found that the plaintiff's application to strike out the defence and enter judgment was meritorious and allowed it, awarding the sum claimed. The omission to expressly award costs to the plaintiff was deemed an accidental slip, curable under section 99 of the Civil Procedure Act. Since costs follow the event and there was no reason to deprive the plaintiff of costs, the court awarded costs of the suit to the plaintiff. Interest was awarded at court rates from the date of filing suit until payment in full, as there was no evidence to support the contractual rate of 22%.
Court Disposition
Judgment entered for the plaintiff; costs awarded to the plaintiff.
Orders
- Judgment is entered for the plaintiff in the sum of Kshs. 4,319,691.22.
- Interest awarded at court rates from the date of filing suit 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
CIVIL SUIT 318 OF 2010
FINA BANK LIMITED…………………….………………………PLAINTIFF
VERSUS
FRANCIS GITAU KOMU T/A BOMAS MOTOR MART….......DEFENDANT
R U L I N G
On 27th March 2012, after hearing the Notice of Motion filed by the plaintiff herein dated 13th October 2011 by which the plaintiff was seeking an order that the Defendant’s statement of defence be struck out and judgement be entered for the plaintiff as prayed for in the plaint, I made the following findings:
In the result, I find merit in the application dated 13th October 2011 and the same is allowed by entry of judgement in the sum of Kshs. 4,319,691. 22. As there was no evidence in support of the rate of interest at 22% I award interest at Court rates from the date of filing suit till payment in full. The plaintiff will also have the costs of the application.
The plaintiff by its letter dated 2nd April 2012 has moved the Court for directions under section 27 of the Civil Procedure Act for provision for costs.
It is clear from the judgement that the application dated 13th October 2011 was allowed. That application was seeking entry of judgement as prayed in the plaint which plaint also sought for costs. Although it does not come out clearly from the ruling, costs do follow the event and there is no reason why the plaintiff’s should have been deprived of the costs. Accordingly the omission to expressly award costs to the plaintiff was as a result of accidental slip or error which is curable under section 99 of the Civil Procedure Act.
Accordingly the costs of this suit are awarded to the plaintiff.
Ruling read, signed and delivered in court this 19thday of September 2012.
G.V. ODUNGA
JUDGE
In the presence of:
Mr Kivuva for Mutua for Plaintiff
No appearance for Defendant