[1998] KECA 25 (KLR)
The Court of Appeal upheld the High Court's finding that the defence and counterclaim filed by the respondents disclosed a reasonable defence to the appellant's claim for damages for trespass and damage to goods. The court emphasized that striking out pleadings is a drastic remedy and should only be exercised in...
Source-derived case information.
- Citation
- [1998] KECA 25 (KLR)
- Parties
- Appellant: Franklin Kithinji; Respondent: Boniface Otieno; Respondent: David Kaigwa
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 56 of 1995
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Striking Out Pleadings, Reasonable Defence, Trespass to Goods, Counterclaim Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Franklin Kithinji
Appellant
Boniface Otieno
Respondent
David Kaigwa
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the defence and counterclaim filed by the respondents disclosed a reasonable defence to the appellant's claim.
- 2 Whether the appellant's application to strike out the defence and counterclaim should be granted.
Ratio Decidendi
The Court of Appeal upheld the High Court's finding that the defence and counterclaim filed by the respondents disclosed a reasonable defence to the appellant's claim for damages for trespass and damage to goods. The court emphasized that striking out pleadings is a drastic remedy and should only be exercised in clear cases where no reasonable defence is disclosed. Since the respondents' pleadings raised triable issues, the application to strike out was properly dismissed. Consequently, the appeal was dismissed with costs to the respondents.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL OF KENYA AT NAIROBI Civil Appeal 56 of 1995
FRANKLIN KITHINJI……………………….......................................…………………….APPELLANT
AND
BONIFACE OTIENO…………………………..............................….……………...1ST RESPONDENT
DAVID KAIGWA……………………………...............................………………… 2ND RESPONDENT
(Appeal from the Ruling and Orders of the High Court of Kenya at Nairobi (Mr.
Justice Hayanga) delivered on 16th January, 1995
IN
H.C.C.C. NO. 5552 OF 1993)
************************
JUDGMENT OF THE COURT
This an appeal from the decision of the superior court (Hayanga J) given on 16th January, 1995, by which the learned Judge dismissed an application brought by Franklin Kithinji (the appellant) seeking to strike out the defence and counterclaim filed by the respondents on 2nd December, 1993.
The appellant filed a suit against the respondents to recover damages for trespass and damage to his goods. The respondents filed a detailed defence denying the appellant’s claim together with a counterclaim. The Judge was satisfied that the defence disclosed a reasonable defence to the appellant’s claim and dismissed the appellant’s application. We have perused the defence and like the learned Judge we too are also satisfied that it disclosed a reasonable defence to the appellant’s claim.
For these reasons this appeal fails and is accordingly dismissed with costs to the respondents.
Dated and delivered at Nairobi this 5th day of June, 1998.
J. E. GICHERU
…………………..
JUDGE OF APPEAL
R. O. KWACH
…………………….
JUDGE OF APPEAL
A. A. LAKHA
………………….
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR