[2002] KEHC 786 (KLR)
The court found that the plaintiff failed to establish any factual basis for a cause of action against the defendant, as the evidence showed the vehicle involved in the accident was not owned by the defendant nor driven by its agents. The plaintiff's failure to provide evidence or a proper affidavit in response, and...
Source-derived case information.
- Citation
- [2002] KEHC 786 (KLR)
- Parties
- Plaintiff: General Motors (K) Ltd; Defendant: Skyline Rollers Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1156 of 2002
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Suit
- Outcome
- application allowed; suit struck out with costs to the defendant
- Judges
- GP Mbito
- Legal Topics
- Striking Out Pleadings, Cause of Action, Verifying Affidavit, Ownership of Motor Vehicle
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
General Motors (K) Ltd
Plaintiff
Skyline Rollers Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Application to Strike Out Suit
Legal Issues
- 1 Whether the plaintiff's suit discloses a cause of action against the defendant.
- 2 Whether the verifying affidavit is defective and should be struck out.
- 3 Whether the suit should be dismissed for lack of evidence on vehicle ownership.
Ratio Decidendi
The court found that the plaintiff failed to establish any factual basis for a cause of action against the defendant, as the evidence showed the vehicle involved in the accident was not owned by the defendant nor driven by its agents. The plaintiff's failure to provide evidence or a proper affidavit in response, and the reliance on speculative future amendments, rendered the suit unsustainable. The court held that it would be oppressive to allow the suit to remain pending in the absence of any cause of action, and that suits should only be filed after facts are established, not while evidence is still being sought.
Court Disposition
application allowed; suit struck out with costs to the defendant
Orders
- The plaintiff's suit dated 8th July, 2002 and filed on 9th July, 2002 is struck out as it discloses no cause of action against the defendant.
- Costs of the suit and the application are awarded to the defendant.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI LAW COURTS)
CIVIL CASE NO. 1156 OF 2002
GENERAL MOTORS (K) LTD……………………..PLAINTIFF
VERSUS
SKYLINE ROLLERS LTD………….…………….DEFENDANT
RULING
This is application filed on 2nd September, 2002 under the provisions of O.VI Rules 13 (1) (a) and (d) of the Civil Procedure Rules and O.XVIII of the civil Procedure Rules the defendant, applicant, prayers:
“1. That the plaintiffs suit date 8th July, 2002 and filed on 9th July, 2002 be dismissed as it discloses no cause of action against the Defendant
2. That paragraph 2 of the plaintiffs verifying affidavit be struck out
The grounds on which the application is based are said to be because none of the vehicles Registration No. KAG 766Z nor his it at any time authorized its staff or agents to drive the suit vehicle. Although served, the plaintiff did not file a replying affidavit but only filed grounds of objections contending that the suit should not be struck and that the respondent be given a chance to correct anomalies therein if any but did not say how.
On the pleadings and affidavit evidence, it is alleged by the respondent that vehicle registration No. 766Z was owned and was being driven by the applicants agents on 10th July, 1999 when it eas involved in an accident with the respondents vehicle registration No. KAH 342 Y causing it to be extensively damaged. Just one day before the suit was time barred on 9th July, 2002, the respondent filed suit alleging the above and in reply the applicant filed a defence contending that it did it own such a vehicle nor were its agents driving the said vehicle on the alleged date. In the supporting affidavit hereto, the applicant attached copies of the Motor Vehicle Registrar’s office documents showing that as on 10th July, 1999, the vehicle registration No. KAG 7662 was owned by Marshals EA Ltd as financier and Jasminder Singh Enterprises ltd which fact has not been controverter by the respondent.
Mr. Sinai, the learned counsel for applicant substituted that the vehicle which allegedly caused the accident and/or the driver hereof was not owned by the applicant or servant thereof, there is no cause of action which can be maintained against the applicant. On the other hand Mrs Kimei, the learned counsel for the respondent submitted that the application was oppressive as the respondent was still gathering information on the ownership of the vehicle and could be …….. by an amendment at the time the details are established.
As can be seen, as of now, there is no ground on which the applicant has been sued by the respondent. It is also not known if the respondent will ever be able to establish that although the vehicle was owned by a third party it was in the control of the applicant. This is however an matter for the future but as of now, the respondent has no cause of action against the applicant. It would therefore be oppressive to the applicant for suit to be left hanging on its head until the respondent goes hunting for evidence to hold the applicant liable. Suits should only be filed after facts are established.
For the above reasons, I hereby allow this application as prayed in pray 1 of the application and hereby strike out the respondents suit with costs. I also award the costs hereof to the applicant.
Orders accordingly.
Delivered and signed this 16th day of December 2002.
G. P. Mbito
JUDGE