[2018] KEHC 2899 (KLR)
The court found that the issue of whether the Defendant admitted indebtedness could not be conclusively determined at this stage, as the letter of admission was not included in the Plaint and was only filed later, depriving the Defendant of an opportunity to respond. Furthermore, the court held that there are...
Source-derived case information.
- Citation
- [2018] KEHC 2899 (KLR)
- Parties
- Plaintiff: General Motors East Africa Limited; Defendant: Nairobi City County Government
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 334 of 2017
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Defence
- Outcome
- application dismissed
- Judges
- RB Ngetich
- Legal Topics
- Contract Enforcement, Summary Judgment, Triable Issues, Admission of Debt
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
General Motors East Africa Limited
Plaintiff
Nairobi City County Government
Defendant
Procedural Posture
Civil Case / Ruling on Application to Strike Out Defence
Legal Issues
- 1 Whether the Defendant admitted indebtedness to the Plaintiff.
- 2 Whether the Defendant's defence raises triable issues warranting a full hearing.
Ratio Decidendi
The court found that the issue of whether the Defendant admitted indebtedness could not be conclusively determined at this stage, as the letter of admission was not included in the Plaint and was only filed later, depriving the Defendant of an opportunity to respond. Furthermore, the court held that there are triable issues raised by the Defence, including the authenticity of the contract and the question of who received the vehicles. In line with the principle that parties should be given an opportunity to be heard where triable issues exist, the court declined to strike out the Defence and dismissed the Plaintiff's application.
Court Disposition
application dismissed
Orders
- The application to strike out the Defence is dismissed.
- Costs in the cause.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL AND ADMIRALTY DIVISION-MILIMANI
CIVIL CASE NO.334 OF 2017
GENERAL MOTORS EAST AFRICA LIMITED.........PLAINTIFF/APPL
VERSUS
NAIROBI CITY COUNTY GOVERNMENT...............DEFENDANT/RESP
R U L I N G
This is a ruling on the Defendants’ Notice of Motion application dated 8th November 2017. It seeks strike out defence dated 10th October 2017 and the suit be set down for hearing.
Grounds on the face of the application are that, the Defendant denies ever entering into contract with the Plaintiff for purchase of motor vehicles nor receiving the said motor vehicles to its satisfaction and use.
That vide letter dated 22nd June 2017 the Defendant admitted indebtedness and delay in payment to the Plaintiff and requested for more time to clear the debt.
That the Defence is a mere denial and fails to raise triable issues to warrant this Court proceeding to trial.
The application is supported by Affidavit of Anthony Musyoki.
He averred that the Defendant approached the Plaintiff to purchase a number of vehicles, which were delivered as per delivery notes attached. He restated that the Defendant by letter dated 22nd June 2017 admitted indebtedness to the Plaintiff and gave explanation for the delay. The said letter is attached to the Supporting Affidavit.
Plaintiffs contend that that the overriding objective of this Court is to facilitate the just, expeditiously, proportionate and affordable resolution of civil disputes before it.
In response, the Defendant filed replying Affidavit sworn by Violet Oyangi the Acting Director, Legal Affairs with the Defendant. He denied the claim that the Defendant wrote a letter to the Plaintiffs Advocate acknowledging the debt. He further raised doubt as to the authenticity of the contract and alleged that the Defendant did not sign it.
Respondent further contend that the letter relied on by the Plaintiff to strike out defence was not among the initial list of documents attached to defence; and no leave was sought before filing the additional document.
Further, that the Court will deliberate on whether the contract annexed to pleadings is valid or void and that the Plaintiff will suffer no prejudice if the suit is fully heard.
Respondent added that delivery notes show that different persons other than the Defendant received the vehicles.
Parties herein filed written submissions restating averments in the Affidavits
Analysis and determination
I have considered rival arguments herein. I wish to consider the following issues:-
1. Whether Defendant admitted indebtedness,
2. Whether the Defendant has defence with triable issues.
On perusal of the Court file, I note that the letter acknowledging the debt was filed on 5th December 2017 together with reply to defence; there is no mention of the admission of debt in the Plaint filed. If it had been introduced at that stage, the Defendant would have had an opportunity to respond to its contents. The issue of admissions cannot therefore be dealt with conclusively at this stage.
Further upon perusal of the documents attached I am of the view that there are triable issues which require Defendant being given an opportunity to be heard before final determination is made by this Court.
From the foregoing, I find that it would be appropriate to accord the Defendant a hearing.
FINAL ORDER
The application herein is hereby dismissed.
Costs in the cause.
Ruling dated, signed,anddeliveredatNairobithis18thday ofOctober, 2018.
.....................................
RACHEL NGETICH
JUDGE
IN THE PRESENCE OF
CATHERINE: COURT ASSISTANT
PARTIES ABSENT