[2012] KEHC 314 (KLR)
The court found that although the defence was filed after the application for summary judgment, it nonetheless raised triable issues that warranted a full hearing. The court emphasized the principle that parties should not be denied their day in court unless it is clear that there is no defence to the claim. In the...
Source-derived case information.
- Citation
- [2012] KEHC 314 (KLR)
- Parties
- Plaintiff: Moury Ouma Kawere; Defendant: Housing Finance Company of Kenya
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 644 of 2011
- Procedural Posture
- Civil Case / Ruling on Application for Summary Judgment
- Outcome
- Application for summary judgment dismissed. Suit to proceed to hearing inter-partes. Costs awarded to respondent.
- Judges
- JV Juma
- Legal Topics
- Summary Judgment, Triable Issues, Inter Partes Hearing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moury Ouma Kawere
Plaintiff
Housing Finance Company of Kenya
Defendant
Procedural Posture
Civil Case / Ruling on Application for Summary Judgment
Legal Issues
- 1 Whether the plaintiff is entitled to summary judgment against the defendant.
- 2 Whether the defence raises triable issues warranting a full hearing.
Ratio Decidendi
The court found that although the defence was filed after the application for summary judgment, it nonetheless raised triable issues that warranted a full hearing. The court emphasized the principle that parties should not be denied their day in court unless it is clear that there is no defence to the claim. In the interests of justice, the court declined to grant summary judgment and directed that the suit proceed to hearing inter-partes. The application for summary judgment was therefore dismissed, with costs awarded to the respondent.
Court Disposition
Application for summary judgment dismissed. Suit to proceed to hearing inter-partes. Costs awarded to respondent.
Orders
- The application for summary judgment is dismissed.
- The suit shall be heard inter-partes.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
High Court at Mombasa
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MOURY OUMA KAWERE ........................................ PLAINTIFF
=VERSUS=
HOUSING FINANCE COMPANY OF KENYA ..........DFENDANT
RULING
The Applicant has filed this Notice of Motion dated 2nd February 2012 seeking the following orders:
“1. THAT summary judgement be entered against the defendant for the orders as prayed in the plaint.
2. THAT the costs of this application be provided for”
The Respondents filed their Replying Affidavit dated 5th April 2012 in opposition to the application. MR. ATANCHA Advocate appeared for the Applicant whilst MS. MANGO acted for the Respondent. Both counsel made brief oral submissions with respect to the present application.
The Applicant makes a prayer for summary judgment. I have considered this present application as well as the annextures thereto. I have also considered the replying affidavit. I note that the Defence dated 22nd March 2012 was filed in court afterthis application was filed. However the defence does in my view raise triable issues and as a court I would be loath to turn the Respondent away from the gates of justice. It is the interests of justice that the suit be heard inter-parties. For this reason I do dismiss this application for summary judgement and direct that the suit be heard inter parties. The Respondents to bear the costs for this application.
Dated and Delivered in Mombasa this 28th day of November 2012.
M. ODERO
JUDGE
In the presence of:
Mr. Nabwana holding brief for Ms. Mango for Respondent
No appearance by Mr. Atancha for Applicant