[2011] KEHC 836 (KLR)
The court found that the issues raised in the application and affidavits are matters of evidence that require testing through cross-examination at a full hearing. The court emphasized that interlocutory applications should not be used to summarily dispose of substantive matters where facts are disputed, unless there...
Source-derived case information.
- Citation
- [2011] KEHC 836 (KLR)
- Parties
- Plaintiff: Ibrahim Njiru; Defendant: Canon Motors Limited; Defendant: Daniel Gikunda; Defendant: Anthony Muriithi Gitonga
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 160 of 2010
- Procedural Posture
- Civil Case / Ruling on Interlocutory Application
- Outcome
- application dismissed
- Legal Topics
- Interlocutory Applications, Evidence Testing, Cross Examination, Summary Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ibrahim Njiru
Plaintiff
Canon Motors Limited
Defendant
Daniel Gikunda
Defendant
Anthony Muriithi Gitonga
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the application to dispose of the matter at the interlocutory stage should be allowed.
- 2 Whether the affidavit evidence is sufficient to determine the matter without full trial.
Ratio Decidendi
The court found that the issues raised in the application and affidavits are matters of evidence that require testing through cross-examination at a full hearing. The court emphasized that interlocutory applications should not be used to summarily dispose of substantive matters where facts are disputed, unless there is consent by the parties. Therefore, the application to dispose of the matter at the interlocutory stage was disallowed, and the parties were directed to proceed to a full hearing where evidence could be properly examined.
Court Disposition
application dismissed
Orders
- The application dated 29/8/2011 is disallowed.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
CIVIL CASE NO. 160 OF 2010
IBRAHIM NJIRU ……………….…………….............................…………… PLAINTIFF
VERSUS
CANON MOTORS LIMITED…………..........................……………1ST RESPONDENT
DANIEL GIKUNDA ……………………..........................…………..2ND RESPONDENT
ANTONYMURIITHI GITONGA ……..............................…………..3RD RESPONDENT
R U L I N G
This is the Application dated 29/8/2011. It’s supported by the affidavit of the Managing Director of the 1st Defendant. He says that at the time of the accident the 1st Defendant was no longer in possession of the motor vehicle.
It has been opposed and the Plaintiff has filed a Replying affidavit.
I have read through the case of SECURICOR KENYA LTD. –VS- KYUMBA HOLDINGS LTD CIVIL APPEAL NO.73/02 NAIROBI. Whatever is deponed to by the Managing Director of the 1st Defendant and the Plaintiff are all matters of evidence which must be tested through cross-examination. The Court of Appeal arrived at the Judgment after going through the evidence adduced before the High Court.
I need to give the parties the opportunity to testify. This is not a matter to dispose of by way of an interlocutory application, unless the parties have entered into a consent on anything.
I therefore disallow the application.
DATED SIGNED AND DELIVERED THIS 15TH DAY OF DECEMBER 2011.
H.I. ONG’UDI
J U D G E