[2009] KEHC 1669 (KLR)
The court found that the plaintiff's suit raises weighty issues that cannot be conclusively determined at the interlocutory stage. The application to strike out the suit against the 3rd defendant was therefore premature. The court held that such issues should be canvassed and determined at a full hearing, where all...
Source-derived case information.
- Citation
- [2009] KEHC 1669 (KLR)
- Parties
- Plaintiff: Kaniki Karisa Kaniki; Defendant: Commercial Bank of Africa; Defendant: Giro Commercial Bank Ltd; Defendant: Miathene-Malindi Enterprises Ltd
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Commercial Civil Suit 177 of 2006
- Procedural Posture
- Chamber Summons Application / Ruling on Interlocutory Application to Strike Out Suit Against 3rd Defendant
- Outcome
- application dismissed
- Judges
- JV Juma
- Legal Topics
- Striking Out Pleadings, Reasonable Cause of Action, Interlocutory Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kaniki Karisa Kaniki
Plaintiff
Commercial Bank of Africa
Defendant
Giro Commercial Bank Ltd
Defendant
Miathene-Malindi Enterprises Ltd
Defendant
Procedural Posture
Chamber Summons Application / Ruling on Interlocutory Application to Strike Out Suit Against 3rd Defendant
Legal Issues
- 1 Whether the suit against the 3rd defendant discloses a reasonable cause of action.
- 2 Whether the suit against the 3rd defendant should be struck out at the interlocutory stage.
Ratio Decidendi
The court found that the plaintiff's suit raises weighty issues that cannot be conclusively determined at the interlocutory stage. The application to strike out the suit against the 3rd defendant was therefore premature. The court held that such issues should be canvassed and determined at a full hearing, where all parties will have the opportunity to present their evidence and arguments. As a result, the application was dismissed in its entirety, and the court declined to grant the orders sought by the 3rd defendant.
Court Disposition
application dismissed
Orders
- The application to strike out the suit against the 3rd defendant is dismissed in its entirety.
- Costs in the cause.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
COMMERCIAL CIVIL SUIT 177 OF 2006
KANIKI KARISA KANIKI ……………………................………………. PLAINTIFF
VERSUS
COMMERCIAL BANK OF AFRICA …………….…………….. 1ST DEFENDANT
GIRO COMMERCIAL BANK LTD ……….…………………… 2ND DEFENDANT
MIATHENE-MALINDI ENTERPRISES LTD ……...………… 3RD DEFENDANT
*********************
RULING
By this application brought by way of Chamber Summons and dated 10th June 2008 the 3rd Defendant/Applicant seeks the following orders:-
“(1) That the suit against the 3rd defendant be struck of as disclosing no reasonable cause of action.
(2) That costs of the application be provided for”
By consent both Mr. Anyanzwa for the Plaintiff and Mr. Kaburu for the 3rd Defendant/Applicant opted to proceed by way of written submissions. I have carefully considered the written submissions of both advocates as well as the authorities annexed thereto. I am convinced that the Plaintiffs suit raises weighty issues which cannot be disposed of at this interlocutory stage. It is my considered opinion that the issues raised can only rightfully be canvassed at a full hearing of the suit. It is only then that the issues raised by the 3rd Defendant in this Chamber Summons may be conclusively determined. As such I dismiss this current application in its entirety and decline to grant the orders sought. Costs in the cause.
Dated and delivered at Mombasa this 16th day of July 2009.
M. ODERO
JUDGE
Read in the presence of:
Mr. Anyanzwa for Plaintiff/Respondent
No appearance by Defendant/Applicant