https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11984

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT THIKA** **COMMERCIAL CASE NO. E018 OF 2025** **JAMES MWAURA NDUNGU…………………....................................PLAINTIFF** **VERSUS** **KENYA WOMEN MICROFINANCE BANK PLC…………………….. DEFENDANT** **RULING** **Introduction** 1. The Application for determination dated 2nd February 2026 seeks to strike out the defendant’s defence and enter summary judgment for the plaintiff in the sum of **Kshs. 34,659,986.95/-** as admitted by the defendant together with interest and costs. 2. In opposition to the application, the defendant filed a Replying Affidavit dated **18th February 2026**. **Applicant/Plaintiff’s Case** 1. The Plaintiff depones that he is a customer with the Defendant/Respondent at its Thika Branch where he operates account number 1006047880. On 7th November 2023, he states that he entered into an agreement with the defendant to place a fixed deposit of Kshs. 26 million through contract number 2331328361 at an interest rate of 16% for a period of one year which was to mature on 7th November 2024. 2. Upon maturity on 7th November 2024, he entered into a second agreement with the defendant vide account number LD2431289037 and he fixed Kshs. 29,773,153.50/- at an interest rate of 18% which was to mature on 7th November 2025. Upon maturity on 7th November 2025, he informed the Defendant’s Manager that he was not going to renew the fixed deposit and that he needed his money back which at the time stood at Kshs. 34,659,986.95/-. 3. The Plaintiff deposes that to his surprise and consternation the said Defendant’s Manager informed him that the bank had no money to pay him. He then wrote to the Managing Director of the Defendant/Respondent on 13/11/2025 demanding for his money but to date he has not received any response about his money. The Plaintiff contends that the Defendant has admitted in its defence that it is holding his money but has not explained why it cannot pay release his money back. The Plaintiff confirms that he did not renew the fixed deposit account with the Defendant as alleged. 1. The Plaintiff contends that the Defendant has seriously destabilized him and is currently unable to pay for his medical checkup or school fees for his children or meet other personal expenses. 2. The Plaintiff further contends that the Defendant’s defence is a sham, raises no triable issues and is a ploy for the Defendant to continue illegally holding his money. The Plaintiff urges the Court to strike out the Defendant’s defence and enter judgment for Kshs. 34,659,985.95/- together with costs and interest from the date of default until payment in full. **The Defendant’s Case** 1. The Defendant in its statement of defence contends that its defence is well founded, merited and raises triable issues that can only be determined at trial where the Plaintiff’s claims can be substantiated and properly interrogated. 2. It points out that the triable issues arising from the statement of defence include the fact that the Plaintiff renewed his fixed deposit account contract for a further 12 months effective from 11th November 2025; the Plaintiff’s earlier communication cancelling the fixed deposit was negated by his renewal of the contract at the bank’s branch thereby giving rise to a new contract; the Plaintiff’s failure to initiate the prescribed cancellation process and/or complete and submit the requisite RTGS transfer documentation as required under their operational and contractual procedures, conduct consistent with affirmation of the renewed fixed deposit and the Plaintiff’s attempt to prematurely terminate a renewed fixed deposit contract whose maturity date is 10th November 2026 given that funds are not always available on immediate termination and subject to internal reconciliation of the fixed deposit account. 3. The Defendant avers that the said issues are substantive and require production of documentary evidence and oral testimony at trial for full determination. Further, they aver that no prejudice will be suffered by the Plaintiff if the orders sought are not granted since he will have the opportunity to demonstrate to the court that his case is well founded at the full trial. On the flipside, it will be greatly prejudicial to the Defendant if the statement of Defence is struck out as they would be condemned unheard in a suit for a colossal sum of Kshs. 34,659,986.95 plus costs and interest. 1. The Defendant contends that striking out pleadings is a draconian remedy to be exercised sparingly and only in the clearest of cases. 2. The Plaintiff filed a Supplementary Affidavit dated 3rd March 2026 and denies that he renewed his fixed deposit account for a further 12 months effective 7th November 2025. He deposes that he did not communicate the same either and that the Defendant did not offer him RTGS documents for him to execute in order to transfer back funds into his account. The defendant depones that he wrote to the defendant on 7th November 2025 clearly indicating that he was not renewing his fixed deposit account and further the defendant has not attached any documentary evidence showing that he cancelled his letter dated 7th November 2025. Neither has the Defendant attached any documentary evidence as proof that he renewed his fixed deposit account for a further 12 months with the maturity date being 7th November 2026. 3. The Plaintiff avers that the defendant’s conduct is unbecoming as a micro-finance bank by refusing to pay him his money and further the Defendant is dishonest and has breached its fiduciary duty it owes him. 4. Parties put in written submissions. **The Plaintiff’s Submissions** 1. The Plaintiff cited the cases of **Continental Butchery Limited vs Samson Musila Nthiwa (1978) eKLR** and **Industrial & Commercial Development Corporation vs Daber Enterprises Ltd (1976) 1 WLR 1313** and submitted that summary judgment will be entered where the defence raises no bona fide triable issue. Further, the plaintiff relied on the case of **Choitram vs Nazari** (no citation given) and submitted that a mere denial or unsupported allegation does not constitute a triable issue. 2. The Plaintiff argued that the Defendant in its defence expressly admits that it holds his funds in the fixed deposit account which establishes the existence of a debtor creditor relationship between the Money deposited in a bank account becomes a debt owed by the bank to the customer payable in accordance with the contractual terms governing the account. Thus, upon maturity of a fixed deposit, the financial institution becomes immediately obligated to release the principal sum together with the agreed interest unless there exists a lawful basis for withholding the funds. The Plaintiff further argued that the Defendant has not disputed the existence of the fixed deposit account’ the amount deposited or that the funds are held by the Defendant. Thus, his claim is for a liquidated and admitted sum making it suitable for determination under summary procedure. 1. The Plaintiff submitted that the defendant attempts to justify its refusal to release his funds by alleging that he verbally renewed the fixed deposit contract upon maturity. Having alleged that he issued verbal instructions to renew the fixed deposit, the defendant bears the burden of proving the existence of such instructions. Further, no evidence has been placed before the court to demonstrate the date of the alleged renewal, the duration of the renewed term, the applicable interest rate or any record or documentation reflecting the alleged instructions. Further, the Defendant is a regulated financial institution operating within the framework of the Banking Act and under the supervision of the Central Bank of Kenya. Thus banking practices require that customer instructions affecting deposit accounts be properly documented and recorded. Additionally, a party cannot defeat a claim for an admitted debt by merely raising a speculative or unsupported allegation. Courts have consistently rejected defences that are intended merely to delay payment of an admitted obligation. 1. The Plaintiff asserted that the Defendant’s defence is a sham designed to delay him from recovering funds that are lawfully due and payable. The Defendant admits holding his money yet fails to demonstrate any contractual or legal basis for withholding the same. Where a defendant admits the existence of the debt but merely disputes liability on speculative grounds, the court is entitled to enter summary judgment. **The Defendant’s Submissions** 1. The Defendant relied on the case of **Job Kilach vs Nation Media Group Ltd, Salaba Agencies Ltd & Michael Rono [2015] KECA 846 (KLR)** and submitted that its defence raises triable issues that can only be ventilated at the hearing of the suit. The Defendant holds the position that the plaintiff’s claim for immediate payment is inconsistent with the subsisting contractual terms governing the investment and can only be resolved through interpretation of the agreement and examination of the parties’ respective obligations at trial. Further, the Defendant argued that the dispute arises from a binding contract wherein the Plaintiff mutually agreed to renew his fixed deposits contract with the Defendant for a further period of 12 months and the said period is yet to lapse. Thus, it is only through a trial of the case that each party can defend its position on the contract. 1. The Defendant further relied on the case of **BlueShield Insurance Company Limited vs Joseph Mboya Oguttu (2009) eKLR** and submitted that a triable issue need not be of high chances of success. Thus, the defendant argued that striking out the suit at the instant stage would be premature and draconian; would visit injustice and hardship unto them and deny them an opportunity to be heard. 2. The Defendant cited the cases of **DT Dobie & Company (Kenya) Ltd vs Muchina [1982] 1 KLR**; **BlueShield Insurance Company Limited vs Joseph Mboya Oguttu (2009) eKLR**; **Kenindia Assurance Co. Ltd vs Laban Idiah Nyamache [2011] eKLR** and **Kenindia Assurance Company Limited vs Commercial Bank of Africa Ltd & 2 Others (2006) 2 KLR 280** and submitted that the power to strike out a pleading should be used very sparingly and only in cases where the pleading is shown to be clearly untenable. **Analysis and Determination** 1. There is only one core issue for determination in this Application, namely: **Whether the defendant’s statement of defence dated 17th December 2025 should be struck out and summary judgment entered for the plaintiff in the sum of Kshs. 34,659,986.95/-.** 1. Summary judgment is anchored on Order 36, rule 1 and 2 of Civil Procedure Rules which provides as follows**:** **ORDER 36 -Summary judgment** **[Order 36, rule 1]** **(1) In all suits where a plaintiff seeks judgment for—** (a) a liquidated demand with or without interest; or (b) the recovery of land, with or without a claim for rent or mesne profits, by a landlord from a tenant whose term has expired or been determined by notice to quit or been forfeited for non-payment of rent or for breach of covenant, or against persons claiming under such tenant or against a trespasser, where the defendant has appeared but not filed a defence the plaintiff may apply for judgment for the amount claimed, or part thereof, and interest, or for recovery of the land and rent or mesne profits. (2) The application shall be supported by an affidavit either of the plaintiff or of some other person who can swear positively to the facts verifying the cause of action and any amount claimed. (3) Sufficient notice of the application shall be given to the defendant which notice shall in no case be less than seven days. **2. Defendant may show cause [Order 36, rule 2]** The defendant may show either by affidavit, or by oral evidence, or otherwise that he should have leave to defend the suit. 1. The principles applicable in an application of summary judgment were elaborated by the Court of Appeal in **Postal Corporation of** **Kenya vs Inamdar & 2 Others [2004] 1 KLR 359** as follows: **However, we have accepted that the application that was before the learned Judge was an application for summary judgment under Order XXXV Rule 1 and 2. We must now consider whether the principles of law that need to be satisfied before such a judgment is entered were indeed satisfied. The law is now well settled that if the defence filed by a defendant raises even bona fide triable issue, then the defendant must be given leave to defend. There are several authorities in support of this proposition. One of them is this court’s decision in the case of Continental Butchery Limited vs Samson Musila Ndura Civil Appeal No. 35 of 1997 where this Court stated: -** **With a view to eliminate delay in the administration of justice which would keep litigants out of their just dues or enjoyment of their property, the court is empowered in an appropriate suit to enter** **judgment for the claim from the plaintiff under summary judgment provided by Order 35 subject to there being no triable issues which would entitle a defendant leave to defend.** **If a bona fide triable issue is raised the defendant must be given unconditional leave to defend but not so in a case in which the court feels justified in thinking that the defences raised are a sham.** 1. Similarly in **Moi University vs Vishva Builders Limited CA No. 296 of 2004 (unreported)**, the court held:- **The law is now settled that if the defence raises even one bona fide triable issue, then the defendant must be given leave to defend. In this appeal we traced the history from the commencement of** **relationship between the parties herein. The dispute arises out of a building contract. In the initial plaint the sum claimed was well over 300 million but this was scaled down by various amendments until the final figure claimed was Kshs. 185,305,011.30/-. We have looked at the pleadings and the history of the matter and it would** **appear to us that the appellant had serious issues raised in its defence. As we know even one triable issue would be sufficient. We must however hasten to add that a triable issue does not mean one** **that will succeed. Indeed, in Patel vs EA Cargo Handling Services Ltd [1974] EA 75 at page 76 Duffus P said:-** **In this respect defence on the merits does not mean, in my view a defence that must succeed, it means as Sheridan J put it “a triable issue” that is an issue which raises a prima facie defence and which should go to trial for adjudication.** 1. The law on summary judgment thus is that being a drastic remedy, it can only be granted in the clearest of cases in which it is evident that there is no genuine defence to the material facts constituting in the Plaintiff’s claim. 1. In the instant case, the Plaintiff seeks summary judgment to be entered in his favour for Kshs. 34,659,986.95/- for money he deposited in the defendant’s bank as a fixed deposit through contract numbers 2331328361 and LD 2431289037. The fact of the deposit is not controverted; indeed, the Defendant readily admits this fact. 2. The Plaintiff deposed that he on 7/11/2023 entered into an agreement with the defendant in which he fixed 26 million shillings for one (1) year at the rate of 16% per annum. The amount was to mature on 7/11/2024. When it did, the amount stood at Kshs. 29.773,153 by maturity date, he again agreed to refix the amount for another one year, at the rate of 18% per annum. This matured on 7/11/2025 and the outstanding amount was now Kshs. 34,659,986.65 which he informed the respondent he wanted to reach. To his surprise, the Manager informed him the Defendant did not have the money. This prompted him to write to the Managing Director of the Defendant on 13/11/2025. This letter has never elicited a response and the Defendant has not released the money to him despite him not having entered into any arrangement to extend the period of fixing the amount with the Defendant. 1. The Plaintiff thus contends that the Defendant has no valid or justifiable reason of withholding his money which he now wants back, 1. The Defendant argues that its defence raises triable issues which go to the core of the dispute and they ought to be ventilated through examination of evidence and witnesses. In particular, the Defendant contended that a new fixed deposit contract was entered into by the Plaintiff and the Defendant’s Bank branch for a further 12 months term on 11/11/2025 (maturing on 10/11/2026) thereby negating any earlier communication purporting to cancel the deposit, and that the Plaintiff neither initiated the Defendant’s prescribed cancellation process nor completed the required RTGS documentation, his conduct therefore was inconsistent with intention to terminate and thus, the Plaintiff’s intention to withdraw the amount before the date of 10/11/2026 is premature. 1. The Plaintiff in the rejoinder asserts that the Defendants is making bare denials without supporting them with facts or any evidence capable of raising any triable issues. He was categorical that he wrote to the Defendant on 7/11/2025 clearly stating he was not renewing the account and despite the Defendant claiming that he renewed the contract on 11/11/2025 (with maturity of 10/11/2026), it has not produced any evidence or instructions he issued cancelling the recall letter of 7/11/2025 as alleged. 1. The Court of Appeal in the case of **Kenya Trade Combine Ltd vs Shah Civil Appeal No. 193 of 1999**, expounded on what amounts to a triable issue and stated as follows: - **In a matter of this nature, all a defendant is supposed to show is that a defence on record raises triable issues, which ought to go for trial. We should hasten to add that in this respect a defence which raises triable issues does not mean a defence that must succeed.** 1. Similarly in the case of **Olympic Escort International Co. Ltd & 2 Others vs Parminder Singh Sandhu (2009) eKLR**, the Court of Appeal held as follows:- **It is trite that, a triable issue is not necessarily one that the defendant would ultimately succeed on. It need only be bona fide.** 1. Furthermore, a triable issue is said to exist if there is a dispute in facts, which dispute can only be resolved after ventilation in a full hearing. In the case of **Giciem Construction Company vs Amalgamated Trade & Services LLR No. 103 (CAK)** where the court stated;- **As a general principle where a defendant shows that he has a fair case for defence or reasonable grounds for setting up a defence or even a fair probability that he has a bone fide defence, he ought to have leave to defend. Leave to defend must be given unless it is clear that there is no real substantial question to be tried; that there is no dispute as to the facts or law which raises a reasonable doubt that the plaintiff is entitled to judgment.** 1. I have carefully perused the statement of defence dated 17th December 2025 and affidavit by the defendant. In my considered view, the rebuttals to the material facts pleaded by the Plaintiff are bare unsupported allegations. For instance, while the defendant asserts that the Plaintiff on 11/11/2025 renewed the contract at its Bank Branch and thus effectively cancelled his letter of 7/11/2025 in which he had recalled the funds upon maturity, there are no such documented instructions supporting the fact that the Plaintiff issued renewal instructions on 11/11/2025 thereby negating his earlier letter of 7/11/2025. Further no renewal contract is attached supporting the Defendant’s claim that the Plaintiff renewed the fixed deposit contract that shows he fixed the money for another twelve months to mature on 10/11/2026. A mere denial does not constitute a sufficient defence, particularly on a specific issue such as this, that the dispute turns on documented transactions involving a bank. In the absence of written renewal instructions by the Plaintiff, the alleged new fixed deposit contract the Defendant mentions or absence of any document that shows Plaintiff’s withdrawal or cancellation of his earlier instructions recalling the funds upon maturity, the defence is nothing but a conglomeration of bare, unsupported allegations, it is entirely meritless and is a complete sham. 1. It was incumbent upon the Defendant to demonstrate that it has a *bonafide* or reasonable defence to the material controversy with a real prospect of genuinely defending the substantive issue in dispute. I find that the Plaintiff has satisfied the threshold for entry of summary judgment against the Defendant. 1. Accordingly, the application dated 2nd February 2026 is meritorious and is hereby upheld with the consequence that the following orders are hereby issued: 2. **Summary judgment for the Plaintiff against the Defendant in the sum of Kshs. 34,659,986.95 is hereby issued.** 3. **The statement of defence dated 17/12/2025, being a sham comprising bare denials is struck out.** 4. **Plaintiff is awarded cost of the suit together with interest.** ***DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA THIS 30TH DAY OF JULY, 2026.*** **………………………………………….** **L N MUGAMBI** **JUDGE**