[2009] KEHC 3374 (KLR)
The court found that the defendants failed to file a replying affidavit or otherwise respond substantively to the plaintiff's application for summary judgment. The plaintiff's claim was supported by affidavit evidence and documentary proof of the loan agreement and the outstanding debt. The court held that the...
Source-derived case information.
- Citation
- [2009] KEHC 3374 (KLR)
- Parties
- Plaintiff: Industrial & Commercial Development Corporation (ICDC); Defendant: Nuru Chemists Limited; Defendant: James Masita Isaboke; Defendant: Rebeca Nyanchama Nyakundi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 2123 of 2000
- Procedural Posture
- Civil Suit / Ruling on Summary Judgment Application
- Outcome
- summary judgment entered for the plaintiff against all defendants
- Judges
- FI Koome
- Legal Topics
- Loan Agreements, Summary Judgment, Guarantees, Debt Recovery
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Industrial & Commercial Development Corporation (ICDC)
Plaintiff
Nuru Chemists Limited
Defendant
James Masita Isaboke
Defendant
Rebeca Nyanchama Nyakundi
Defendant
Procedural Posture
Civil Suit / Ruling on Summary Judgment Application
Legal Issues
- 1 Whether the defendants are indebted to the plaintiff under the loan agreement.
- 2 Whether the defence raised by the defendants discloses any triable issue to warrant a full trial.
- 3 Whether the plaintiff is entitled to summary judgment as prayed.
Ratio Decidendi
The court found that the defendants failed to file a replying affidavit or otherwise respond substantively to the plaintiff's application for summary judgment. The plaintiff's claim was supported by affidavit evidence and documentary proof of the loan agreement and the outstanding debt. The court held that the defence raised by the defendants was a sham and did not disclose any triable issue. Accordingly, the court exercised its discretion to grant summary judgment in favour of the plaintiff for the liquidated sum claimed, together with costs.
Court Disposition
summary judgment entered for the plaintiff against all defendants
Orders
- Summary judgment is entered against the 1st, 2nd, and 3rd defendants as prayed in the plaint.
- Costs awarded to the plaintiff.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Suit 2123 of 2000
INDUSTRIAL & COMMERCIAL DEVELOPMENT
CORPORTION (ICDC).................................................................... PLAINTIFF
VERSUS
NURU CHEMISTS LIMTIED .............................................. 1ST DEFENDNAT
JAMES MASITA ISABOKE ................................................. 2ND DEFENDANT
REBECA NYANCHAMA NYAKUNDI ................................ 3RD DEFENDANT
RULING
The plaintiff filed a suit seeking for a liquidated sum of Ksh.5. 117,645/80 from the defendants. The sum is in respect of a loan advanced to the defendants pursuant to a loan agreement entered into, between the plaintiff and the defendants. The defendants filed a defence denying liability.
The plaintiff filed a notice of motion seeking for summary judgment against the 1st, 2nd and 3rd defendants as specified in the plaint. This application is based on the grounds that the defendants’ defence is a sham as the defendants are indebted to the plaintiff pursuant to a loan agreement dated August 2000, and the indebtedness is admitted.
The supporting affidavit by Isacc Budddy Mogaka gives further details of how the loan was granted, it was guaranteed by the 2nd and 3rd defendants. They failed to pay the loan which stood at Ksh. 5,117,645. 80 as at 31st August 2000 attracting interest at 24%% per annum.
The defendants despite having been served with this Notice of Motion have not filed a replying affidavit. Accordingly the plaintiff’s application is allowed and summary judgment is entered against the 1st, 2nd and 3rd defendants as prayed. Costs to the plaintiff.
RULING READ AND SIGNED THIS 30TH DAY OF JUNE 2009.
M.K. KOOME
JUDGE