[2006] KEHC 2169 (KLR)
The court found that the applicant's application was procedurally and substantively defective. The prayers in the Chamber Summons were inconsistent and unclear, with the first prayer seeking to strike out defences allegedly filed by the plaintiff/applicant, which did not exist in the court file. The supporting...
Source-derived case information.
- Citation
- [2006] KEHC 2169 (KLR)
- Parties
- Applicant: Kenya Commercial Bank Ltd; Respondent: James Mukaburu Kanyi; Respondent: Simon Gatimu Ndebu
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Case 195 of 1997
- Procedural Posture
- Civil Case / Ruling on Chamber Summons to Strike Out Defence
- Outcome
- application dismissed
- Legal Topics
- Striking Out Pleadings, Summary Judgment, Frivolous and Vexatious Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Commercial Bank Ltd
Applicant
James Mukaburu Kanyi
Respondent
Simon Gatimu Ndebu
Respondent
Procedural Posture
Civil Case / Ruling on Chamber Summons to Strike Out Defence
Legal Issues
- 1 Whether the defences filed by the defendants should be struck out as frivolous, vexatious, and disclosing no cause of action.
- 2 Whether the applicant is entitled to judgment under Order VI Rule 13 or Order XII Rule 6 of the Civil Procedure Rules.
Ratio Decidendi
The court found that the applicant's application was procedurally and substantively defective. The prayers in the Chamber Summons were inconsistent and unclear, with the first prayer seeking to strike out defences allegedly filed by the plaintiff/applicant, which did not exist in the court file. The supporting affidavit was also inconsistent with the prayers sought. The court held that it could not grant judgment to the applicant in the absence of the defences it was being asked to strike out. Furthermore, the applicant's reliance on both Order VI Rule 13 and Order XII Rule 6 was misplaced, as only one could apply in the circumstances, not both. Due to these inconsistencies and procedural...
Court Disposition
application dismissed
Orders
- The Chamber Summons dated 30th July, 2002 is dismissed.
- Each party to bear its own costs of the application.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
Civil Case 195 of 1997
KENYA COMMERCIAL BANK LTD………........................…………PLAINTIFF/APPLICANT
VERSUS
JAMES MUKABURU KANYI
SIMON GATIMU NDEBU…………................................……….DEFENDANT/RESPONDENT
RULING
The Plaintiff/Applicant’s Chamber Summons dated 30th July, 2002 is brought under Order VI Rule 13(1) (a), (b), and (c) and also
Order XII Rule 6 of the civil Procedure Rules. The Application was filed by m/s Mathenge & Muchemi Advocates for the Plaintiff/Applicant and it was prosecuted before me by Mr. Mwangi an Advocate from the above mentioned law firm who told me that both Defendants/Respondents had been served with the Chamber Summons and the relevant hearing notice but neither of them has cared to re-act concerning the Chamber Summons. I am surprised that is the position where each Defendant had filed his defence.
In the circumstances while I would have been inclined to look at the application favourably, the problem is that learned counsel for the Applicant do not seem to have been clear in their mind as to what exactly was the position and therefore as to what they wanted the court to do. Their reliance on order VI Rule 13 as well as Order XII Rule 6 is an example of what I am saying as in the pleading so far on record in this matter, I do not see how both orders of the Civil Procedure Rules apply. It is either Order VI Rule 13 or Order XII Rule 6 and not both.
But that is not all. A look at the prayers in the Chamber Summons makes the situation worse. In the first prayer, the Applicants wants orders:-
“THAT the defence filed hereinby the Plaintiff/Applicants bestruck out on the ground thatthe same are frivolous, vexatiousand discloses no cause of action.”
The defences filed by the Plaintiff/Applicants:I do not find those defences in this court case file - so that I strike them out. Since judgment should be entered for the Plaintiff/Applicant only after the alleged defences have been struck out, I cannot enter such a judgment before I strike out the defences which I am not seeing. Not only is the first prayer inconsistent with the second prayer but also the purported supporting affidavit contradicts the first prayer and is generally inconsistent with the first and second prayers.
The above being the position, this Chamber Summons dated 30th July, 2002 be and is hereby dismissed. Each party to bear its own costs of the application.
Dated this 15th day of June, 2006.
J. M. KHAMONI
JUDGE