[2001] KEHC 515 (KLR)
The court found that the defendant's inability to deliver the logbook was not a new development but a pre-existing condition known to him at the time he entered into the sale agreement. The defendant failed to disclose this fact to the respondent and undertook to release the logbook forthwith. The court held that...
Source-derived case information.
- Citation
- [2001] KEHC 515 (KLR)
- Parties
- Plaintiff: Loise Wanjiru Ngigi; Defendant: James Kangogo
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 370 of 1999
- Procedural Posture
- Civil Case / Ruling on Application to Discharge, Vary or Set Aside Court Order
- Outcome
- application dismissed with costs
- Judges
- T Mbaluto
- Legal Topics
- Setting Aside Orders, Sale of Goods, Specific Performance, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Loise Wanjiru Ngigi
Plaintiff
James Kangogo
Defendant
Procedural Posture
Civil Case / Ruling on Application to Discharge, Vary or Set Aside Court Order
Legal Issues
- 1 Whether the defendant is entitled to have the court order of 11.5.1999 discharged, varied or set aside.
- 2 Whether the defendant's inability to deliver the logbook due to an existing loan constitutes sufficient ground to set aside the order.
- 3 Whether the application amounts to an abuse of the court process.
Ratio Decidendi
The court found that the defendant's inability to deliver the logbook was not a new development but a pre-existing condition known to him at the time he entered into the sale agreement. The defendant failed to disclose this fact to the respondent and undertook to release the logbook forthwith. The court held that the grounds advanced for setting aside the order were not genuine and amounted to an afterthought aimed at evading contractual and court-imposed obligations. The application was therefore found to be misconceived and an abuse of the court process, warranting dismissal with costs.
Court Disposition
application dismissed with costs
Orders
- The application to discharge, vary or set aside the order of 11.5.1999 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
9 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI MILIMANI COMMERCIAL COURTS CIVIL CASE NO. 370 OF 1999 LOISE WANJIRU NGIGI …………………………………. PLAINTIFF VERSUS JAMES KANGOGO ………………………………….….. DEFENDANT
RULING
This application has been made under Section 3A of the Civil Procedure Act to discharge, vary or set aside an order made by this court on 11. 5.1999. The application is supported by an affidavit sworn on 9. 10. 2000 by the applicant and is based on the following grounds:-
(1) That the defendant does not have in his possession the logbook for motor vehicle registration No. KWT 240 as the same is held by Diamond Trust Bank Kenya Ltd. as security for a loan granted to the defendant in respect of which there is an outstanding debt of Shs.3,491,981/99 as at 30. 9.2000; and
(2) The defendant is therefore unable to comply with the order given as aforesaid.
I must confess that I am most unimpressed by the grounds which the applicant has put forward in support of this application and my view of the matter is that he is trying to avoid the obligations imposed upon him by the order sought to be set aside. It is clear that when the applicant entered into the sale agreement with the respondent, he did not at that time disclose to the respondent that he would in any way be unable to deliver the motor vehicle. On the contrary, he undertook to release the relevant logbook forthwith. He is therefore as an afterthought attempting to avoid liability by claiming that he is now unable to deliver the logbook as agreed.
The indebtedness to Diamond Trust Bank Ltd. allegedly giving rise to that inability did not arise after the sale agreement. The applicant knew about it even before he contracted to sell the motor vehicle to the respondent. For all those reasons, I am of the opinion that this application is not only misconceived but also an abuse of the process of this court. The application is dismissed with costs.
Dated at Nairobi this 12th day of June, 2001.
T. MBALUTO JUDGE