[1998] KECA 199 (KLR)
The Court of Appeal found 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 agreed with the High Court's assessment that the pleadings raised triable issues and did not warrant being struck out....
Source-derived case information.
- Citation
- [1998] KECA 199 (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
- ? 56 of 1995
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- JE Gicheru, RO Kwach
- Legal Topics
- Striking Out Pleadings, Trespass to Goods, Defence and Counterclaim
- 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 High Court erred in refusing to strike out the defence and counterclaim.
Ratio Decidendi
The Court of Appeal found 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 agreed with the High Court's assessment that the pleadings raised triable issues and did not warrant being struck out. The court reiterated that the power to strike out pleadings should be exercised sparingly and only in clear cases where no reasonable defence is disclosed. As the defence in this case was not frivolous or vexatious and raised issues that required determination at trial, the appeal was dismissed.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: GICHERU, KWACH & LAKHA, JJ.A.)
CIVIL APPEAL NO. 56 OF 1995
BETWEEN
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 is 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