[2001] KEHC 738 (KLR)
The court found that the agreement signed by the parties on 6th February, 1997, expressly provided that the 2nd defendant, as director of the 1st defendant, guaranteed payment of the purchase price within one month if the 1st defendant failed to pay. The defence did not dispute the existence or terms of the...
Source-derived case information.
- Citation
- [2001] KEHC 738 (KLR)
- Parties
- Plaintiff: Megtrend Engineering & Supplies Ltd; Defendant: Ideal Office Products Ltd; Defendant: Levi O. Obondo
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 2686 of 1998
- Procedural Posture
- Civil Suit / Ruling on Application to Strike Out Defence
- Outcome
- application allowed; defence struck out; judgment entered for plaintiff
- Judges
- JK Mulwa
- Legal Topics
- Contract Enforcement, Guarantee Liability, Summary Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Megtrend Engineering & Supplies Ltd
Plaintiff
Ideal Office Products Ltd
Defendant
Levi O. Obondo
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Strike Out Defence
Legal Issues
- 1 Whether the defence filed by the defendants raises any triable issues.
- 2 Whether the 2nd defendant is liable as a guarantor under the agreement.
- 3 Whether the plaintiff is entitled to judgment as prayed for in the plaint.
Ratio Decidendi
The court found that the agreement signed by the parties on 6th February, 1997, expressly provided that the 2nd defendant, as director of the 1st defendant, guaranteed payment of the purchase price within one month if the 1st defendant failed to pay. The defence did not dispute the existence or terms of the agreement, nor did it raise any complaint regarding the goods sold. The only issue raised was a general denial and a demand for strict proof, which the court held was satisfied by the signed agreement. There was no counterclaim or evidence of any triable issue. Consequently, the court concluded that the defence was a sham, filed only to delay payment, and that the plaintiff was...
Court Disposition
application allowed; defence struck out; judgment entered for plaintiff
Orders
- The defence is struck out.
- Judgment is entered for the plaintiff as prayed for in the plaint.
Full Case Text
Judgment text and source record
10 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT AT NAIROBI CIVIL SUIT NO. 2686 OF 1998
MEGTREND ENGINEERING & SUPPLIES LTD…………………...PLAINTIFF -VERSUS- IDEAL OFFICE PRODUCTS LTD……………………….………1ST DEFENDANT LEVI O. OBONDO……………………………..…………………..2ND DEFENDANT
RULING
In this Application the applicant is asking for the Defence to be struck out as it amounts to a sham. In the Supporting Affidavit to this application in paragraphs 2 and 3, Mr. Dourado who is the Plaintiff’s Director depones that the sum claimed was for the payment of Computer sold to the Defendants. He further explains how the Defendant paid some of the money leaving the balance of the amount, subject of this suit.
In the Defence, the 2nd Defendant denies that he was a guarantor to the 1st Defendant for the payment of the money and pleads that he is wrongly enjoined in the suit as a Defendant. I have studied the Agreement signed by the parties on 6th February, 1997 and its terms agree on what Plaintiff depones in his affidavit. There is no evidence that the Defendants complained about the goods sold to them.
In paragraph 5 of the agreement it is stated that Mr. Levi O. Obondo being the Director of Ideal Office Products Limited guarantees the payment of the purchase price within one month if the 1st Defendant does not pay. The Defence in paragraph 2 and 5 put the Plaintiff on strict proof of the claim. The strict proof is the agreement which was signed by the parties. There is no counter claim by the Defendant.
It follows therefore that the Defence does not raise any triable issues and the Plaintiff under these circumstances is entitled to a judgement. The Defence having been filed to simply delay the payment of the balance of the purchase money. The application is allowed. The Defence is struck out and judgement entered for the Plaintiff as prayed for in the plaint. The application shall have the cost of this application.
Delivered and dated this 19th day of March, 2001
KASANGA MULWA
JUDGE