[2023] KEHC 25582 (KLR)

Laxmanbhai Construction Limited v Praise Mall Limited & another (Commercial Case E471 of 2022) [2023] KEHC 25582 (KLR) (Commercial and Tax) (20 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25582 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Commercial Case E471 of 2022

JWW Mong'are, J

November 20, 2023

Between

Laxmanbhai Construction Limited

Applicant

and

Praise Mall Limited

1st Defendant

Evelyn Kendi Kimathi t/a Purple Lilac Insurance Agency

2nd Defendant

Ruling

1. The Applicant has moved the court by a Notice of Motion filed under Order 2 Rule 15 (1) (b) (c) & (d) and Order 51 Rule 1 of the Civil Procedure Rules seeking the following orders:-1. That the 2nd Defendant’s statement of Defence dated 30th January 2023 be struck out with costs to the Plaintiff.2. That judgment be entered against the 2nd Defendant in favour of the Plaintiff as prayed in the Plaint.3. That costs of and occasioned by this application be borne by the 2nd Defendant.

2. The application is supported by the grounds set within it and the supporting affidavit of Arvind Raghvani sworn on 21st February 2023. The application is opposed and the 2nd Defendant has filed a Replying Affidavit sworn by Evelyn Kendi, the 2nd Defendant on 12th April 2023.

3. In bringing this application the Applicant argues that the defence filed by the 2nd Defendant raises no triable issues to rebut the issues raised in the plaint and that the same should be struck out and judgment entered in favour of the Plaintiff as prayed in the plaint. Judgment has already been entered against the 1st Defendant. The Plaintiff argues that the defence as filed by the 2nd Defendant is a mere sham and consist of mere denials and that there are no factual contestation raised in the 2nd Defendant’s defence to warrant the matter being put to full trial.

4. On her part the 2nd Defendant has filed a response through a replying affidavit sworn on 15th March 2023 by Evelyn Kendi Kimathi. The 2nd Defendant denies being indebted to the Plaintiff to the tune of Kshs.47,558,417/- and has further denied owing the sum of Kshs.4,113,620. 65/- in accrued interest or at all.

5. The 2nd Defendant argues that her defence as filed raises triable issues and that the only way the matter can be determined if parties are allowed to call evidence to prove their case. She urged the court to dismiss the application as filed.

Analysis and Determination 6. I have carefully considered the Plaintiff’s application as filed and the supporting affidavit and annextures thereto. I have equally considered the response filed thereto in the Replying Affidavit sworn by the 2nd Defendant and the written submissions and oral highlights of the same by the parties. To my mind, the only issue available for determination is “whether the Plaintiff ’s application to strike out the defence filed by the 2nd Defendant is merited.”

7. I note from the outset the 1st Defendant upon being served with the plaint and summons to enter appearance did not file any defence to the suit and therefore the court, upon application by the Plaintiff entered summary judgment in default. I have carefully considered the plaint and the defence filed by the 2nd Defendant. It is the position taken by the 2nd Defendant that there existed no contractual relationship between the Plaintiff and herself. That the contractual arrangement, if any, that existed was between the Plaintiff and the 1st Defendant for which she was not privy. And that at all material times she acted as the agent of the 1st Defendant and had no obligations arising from the relationship between the 1st Defendant and the Plaintiff. She therefore denies being indebted to the Plaintiff as pleaded in the Plaintiff and has put the Plaintiff to strict proof.

8. The 2nd Defendant in her submissions has placed reliance on the case of Attorney General vs. Equip Agencies Ltd(2006)eKLR where the court of appeal observed:-“Looking at the pleadings, the annexed documents and considering the rival submissions of both parties, it cannot in the circumstances, be said that the contract between the Ministry of Health and the respondent is plain and obvious. There appears indeed, to be contentious issues which can only be ventilated by holding a trial and the learned judge is faulted for holding otherwise……the appellate court affirmed the defence therein had several issues that should be allowed to go to trial.”

9. Similarly, in the matter before this court, I am persuaded that the 2nd Defendant’s defence raises triable issues that can only be determined once evidence is adduced during a trial and weighted against the facts of the case. All these issues being raised in the defence are pertinent and require to be determined upon presentation of evidence on both sides. They are in my view contentious. I am therefore persuaded that the said 2nd Defendant’s defence is not a sham as alleged by the plaint. The matter will proceed to full trial on the issues raised by the parties for determination.

10. The upshot of the above findings is that the application is dismissed with costs to the 2nd Respondent.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 20TH DAY OF NOVEMBER 2023. ........................................J. W. W. MONG’AREJUDGEIn the Presence of:-1. Mr. Owino holding brief for Mr. Amoko for the Plaintiff /Applicant.2. Mr. Kori hording brief for Mr. Githui for the 2n Defendant/Respondent3. Amos - Court Assistant