[2000] KEHC 567 (KLR)
The court found that the defendant did not deny the debt and that his explanation regarding the collapse of his business due to a government ban on saw milling did not constitute a valid defence to the loan repayment claim. The court held that the plaintiff's inability to realize the security by sale of the charged...
Source-derived case information.
- Citation
- [2000] KEHC 567 (KLR)
- Parties
- Plaintiff: Kenya Commercial Finance Co Ltd; Defendant: Ezekiel Kosgeiarap Kesendany
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 863 of 1999
- Procedural Posture
- Civil Case / Summary Judgment Application
- Outcome
- application_allowed_judgment_for_plaintiff
- Legal Topics
- Summary Judgment, Loan Repayment, Defence Striking Out
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Commercial Finance Co Ltd
Plaintiff
Ezekiel Kosgeiarap Kesendany
Defendant
Procedural Posture
Civil Case / Summary Judgment Application
Legal Issues
- 1 Whether the defendant's defence discloses any reasonable grounds or triable issues.
- 2 Whether summary judgment should be entered against the defendant for the loan amount claimed.
Ratio Decidendi
The court found that the defendant did not deny the debt and that his explanation regarding the collapse of his business due to a government ban on saw milling did not constitute a valid defence to the loan repayment claim. The court held that the plaintiff's inability to realize the security by sale of the charged property did not absolve the defendant of his repayment obligations. As the defence raised no triable issues or reasonable grounds, the court allowed the application for summary judgment and entered judgment in favour of the plaintiff as prayed in the plaint.
Court Disposition
application_allowed_judgment_for_plaintiff
Orders
- Judgment is entered in favour of the plaintiff against the defendant as prayed in the plaint.
- The defendant will bear the plaintiff's costs of this application.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
CIV CASE 863 OF 1999
KENYA COMMERCIAL FINANCE CO LTD
VERSUS
EZEKIEL KOSGEIARAP KESENDANY
High Court of Kenya at Nairobi October 23, 2000
Milimani Commercial Courts
T Mbaluto, Judge
Civil Case No 863 of 1999
RULING
October 23, 2000 T Mbaluto, Judge delivered the following ruling. This is an application for summary judgment under Order XXXV Rule 1 of the Civil Procedure Rules. The application is based on the ground that the defence filed by the defendant is frivolous, vexatious and otherwise an abuse of the courts process. It is also claimed by the plaintiff that the defence does not disclose any reasonable grounds of defence or raise any triable issues. The defendant who appeared in person did not deny the debt. He said that he borrowed the money from the plaintiff the subject matter of the suit to purchase some machinery for saw milling but only two weeks after buying the machine, the Government banned saw milling and his business collapsed. Attempts by the plaintiff to sell the securities held in respect of the loan proved unsuccessful.
The plaintiff’s failure to realise its security by sale of the charged property does not of course release the defendant from its obligations. He remains liable to repay the loan. Accordingly, I can see no basis for resisting the claim. The application is allowed and judgment entered in favour of the plaintiff against the defendant as prayed in the plaint. The defendant will bear the plaintiff’s costs of this application.
Delivered on October 23, 2000
T Mbaluto, Judge