[2002] KEHC 576 (KLR)
The court found that the defendant failed to file a replying affidavit or otherwise demonstrate any entitlement to defend the claim. The defence on record did not answer the plaintiff's claim, and the liability to pay arose from a contract to borrow money, the terms of which were agreed by both parties. The rate of...
Source-derived case information.
- Citation
- [2002] KEHC 576 (KLR)
- Parties
- Plaintiff: Kenya Commercial Bank; Defendant: Bakari A. Yuwa
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 313 of 1994
- Procedural Posture
- Civil Suit / Ruling on Summary Judgment
- Outcome
- application for summary judgment allowed with costs
- Legal Topics
- Summary Judgment, Contract Enforcement, Loan Agreements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Commercial Bank
Plaintiff
Bakari A. Yuwa
Defendant
Procedural Posture
Civil Suit / Ruling on Summary Judgment
Legal Issues
- 1 Whether the plaintiff is entitled to summary judgment against the defendant for the claimed debt under the loan contract.
- 2 Whether the defendant has raised any triable issue or valid defence to the plaintiff's claim.
- 3 Whether the interest rate applied by the plaintiff bank was within the terms of the contract.
Ratio Decidendi
The court found that the defendant failed to file a replying affidavit or otherwise demonstrate any entitlement to defend the claim. The defence on record did not answer the plaintiff's claim, and the liability to pay arose from a contract to borrow money, the terms of which were agreed by both parties. The rate of interest applied by the plaintiff bank was within the contract terms, and the bank had discretion to alter rates without notice. There being no triable issue or valid defence raised, the court allowed the application for summary judgment as prayed, with costs to the plaintiff.
Court Disposition
application for summary judgment allowed with costs
Orders
- Summary judgment entered for the plaintiff as prayed.
- Defendant to pay costs of the application.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL SUIT NO. 313 OF 1994
KENYA COMMERCIAL BANK ……….PLAINTIFF
VERSUS
BAKARI A. YUWA ……………………DEFENDANT
R U L I N G
Upon hearing counsel for the applicant and upon reading the application the pleadings and supporting affidavit together with annexures, I am satisfied that the applicant has proved the claim for summary judgement.
The defendant has failed to file a replying affidavit or in any way to show the court that he is entitled to defendant. The defence he has filed does not answer the plaintiff’s claim this liability to pay the claim arises out of contract to borrow money. The terms thereof were agreed by both parties. The rate of interest was set down and the applicant bank was given full discretion without notice to alter rates of interest. I therefore find that the rate applied is within the contract terms and the court can not interfere. In the circumstances application is hereby allowed as prayed with costs.
Dated 21-8-02
J. KHAMINWA
HON. LADY COMMISSIONER