[1998] KEHC 246 (KLR)
The court found that the amended defence filed by the defendants disclosed several triable issues that warranted a hearing. The principle that summary judgment or striking out of a defence is only available in clear and obvious cases was applied. Since the claim was not for a liquidated sum and the defence raised...
Source-derived case information.
- Citation
- [1998] KEHC 246 (KLR)
- Parties
- Plaintiff: John Kamande Mwangi; Defendant: Trust Bank Ltd; Defendant: Ajay Shah
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 150 of 1997
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Amended Defence and Enter Judgment
- Outcome
- application dismissed with costs
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Summary Judgment, Striking Out Pleadings, Triable Issues
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Kamande Mwangi
Plaintiff
Trust Bank Ltd
Defendant
Ajay Shah
Defendant
Procedural Posture
Civil Case / Ruling on Application to Strike Out Amended Defence and Enter Judgment
Legal Issues
- 1 Whether the amended defence discloses any triable issues warranting a hearing.
- 2 Whether the defence should be struck out as an abuse of the process of court.
- 3 Whether summary judgment should be entered for the plaintiff.
Ratio Decidendi
The court found that the amended defence filed by the defendants disclosed several triable issues that warranted a hearing. The principle that summary judgment or striking out of a defence is only available in clear and obvious cases was applied. Since the claim was not for a liquidated sum and the defence raised issues that required determination at trial, the application to strike out the defence and enter judgment for the plaintiff could not succeed. The court therefore dismissed the application with costs to the defendants.
Court Disposition
application dismissed with costs
Orders
- The plaintiff's application to strike out the amended defence and enter judgment is dismissed with costs.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 150 OF 1997
JOHN KAMANDE MWANGI..................................................PLAINTIFF
VERSUS
TRUST BANK LTD......................................................1ST DEFENDANT
AJAY SHAH................................................................2ND DEFENDANT
R U L I N G
This is an application by way of Notice of Motion under Order 35 Rules 1&2 of the Civil Procedure Rules and section 3A of the Civil Procedure Act for orders that the amended defence filed on 4th June, 1998 be struck out as an abuse of the process of court and judgment be entered in favour of the plaintiff as prayed. The application is supported by an affidavit sworn by the plaintiff to which grounds of opposition and a replying affidavit have been filed on behalf of the defendants.
It is trite law that the order sought by the plaintiff is only available in clear and obvious cases. The defence sought to be struck out must be such that it discloses no triable issues that warrant a hearing. I have related this principle to the pleadings and with respect, it cannot be said that the amended defence does not have triable issues. Several are disclosed. Further, the provisions of law invoked by the learned counsel for the plaintiff relate to prayers or claims for liquidated sum. That is not the case here.
Accordingly the application fails and is hereby dismissed with costs.
Dated and delivered at Nairobi this 23rd day of September, 1998.
A. MBOGHOLI MSAGHA
JUDGE