[2015] KEHC 126 (KLR)
The court determined that neither application for striking out the Plaint nor the Defence should be considered on merit at this stage. The judge emphasized that striking out pleadings is a drastic remedy only to be used where the defect is clear and does not require further evidence. In this case, the court found...
Source-derived case information.
- Citation
- [2015] KEHC 126 (KLR)
- Parties
- Plaintiff: Impresa Construzioni Giuseppe Maltauro SPA; Defendant: GA Insurance Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 518 of 2014
- Procedural Posture
- Civil Case / Ruling on Interlocutory Applications
- Outcome
- Applications not considered on merit; parties advised to withdraw applications and proceed to trial.
- Judges
- DO Ogembo
- Legal Topics
- Striking Out of Pleadings, Summary Judgment, Pre Trial Directions
- 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
Impresa Construzioni Giuseppe Maltauro SPA
Plaintiff
GA Insurance Limited
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Applications
Legal Issues
- 1 Whether the Plaint should be struck out and the suit dismissed as sought by the Defendant.
- 2 Whether the Defence should be struck out and judgment entered for the Plaintiff as prayed in the Plaint.
- 3 Whether the applications should be determined on merit or the matter should proceed to full trial.
Ratio Decidendi
The court determined that neither application for striking out the Plaint nor the Defence should be considered on merit at this stage. The judge emphasized that striking out pleadings is a drastic remedy only to be used where the defect is clear and does not require further evidence. In this case, the court found that the prudent use of judicial time would be to allow the parties to complete pre-trial directions and proceed to a full hearing, where all issues can be ventilated and evidence led. The applications were therefore not considered on their merits, and the parties were advised to withdraw them and set the matter down for trial.
Court Disposition
Applications not considered on merit; parties advised to withdraw applications and proceed to trial.
Orders
- Both applications are not considered on merit.
- Parties are advised to withdraw the applications and set the matter for trial.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL & ADMIRALTY DIVISION
CIVIL CASE NO. 518 OF 2014
IMPRESSA CONSTRUZIONI
GIUSEPPE MALTAURO SPA………………………..PLAINTIFF
VERSUS
GA INSURANCE LIMITED………………………..DEFENDANT
R U L I N G
1. There are two Notice of Motionapplications before the court. The first applicationis dated 21st January 2015 filed by the Defendant and is seeking the striking out of the Plaint and dismissal of the suit. The second application is dated 9th March 2015 filed by the Plaintiff seeking the striking out of the Defence and entry of Judgment as prayed in the Plaint. I will not write a long Ruling on the matter, suffice to say that I have considered both applications and the supporting affidavits. I have also considered the use of judicial time and objections under Section 1A, 1B and 3A of the Civil Procedure Act, and I am of the view that the parties should, instead of pursing those applications, complete pre-trial directions, set out the matter for hearing and lead full evidence during the trial. Parties had filed written submission to the two applications. Perhaps if the parties had made oral submissions before the court, I would have noted the need for the suit to go for full trial in time.
2. It is now legally sound principle that a court will not strike out pleadings unless the need to do so is self evident and does not require additional evidence. Having looked at the two applications before the court, I am of the view that a prudent use of judicial time would be that which allows the parties to complete pre-trial directions and list the matter for full hearing.
3. In the upshot, both applications are not considered on merit, and the parties are advised to withdraw the same and set up the matter for trial.
Orders accordingly.
READ, DELIVERED AND DATED AT NAIROBI THIS 12TH DAY OF NOVEMBER 2015
E. K. O. OGOLA
JUDGE
PRESENT:
Mr. Muchiri for the Plaintiff
No appearance for the Defendants
Teresia – Court Clerk