[2004] KEHC 2068 (KLR)
The court found that the Defendant's denial of the Plaintiff's employment status constitutes a triable issue. Where a defence raises a triable issue, it should not be struck out summarily. The court emphasized that the circumstances of the Plaintiff's alleged dismissal and the Defendant's denial of employment are...
Source-derived case information.
- Citation
- [2004] KEHC 2068 (KLR)
- Parties
- Plaintiff: Myekho Burudi; Defendant: Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 858 of 2003
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Defence
- Outcome
- application dismissed with costs
- Legal Topics
- Striking Out of Pleadings, Triable Issues, Summary Dismissal, Defence Disclosure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Myekho Burudi
Plaintiff
Attorney General
Defendant
Procedural Posture
Civil Case / Ruling on Application to Strike Out Defence
Legal Issues
- 1 Whether the Defendant's Defence should be struck out for failing to disclose a reasonable defence.
- 2 Whether the denial of employment by the Defendant constitutes a triable issue.
Ratio Decidendi
The court found that the Defendant's denial of the Plaintiff's employment status constitutes a triable issue. Where a defence raises a triable issue, it should not be struck out summarily. The court emphasized that the circumstances of the Plaintiff's alleged dismissal and the Defendant's denial of employment are matters that require full trial and cannot be determined on affidavit evidence alone. Therefore, the application to strike out the Defence was not merited and should be dismissed, allowing the issues to be canvassed at trial.
Court Disposition
application dismissed with costs
Orders
- The Application dated 6th November 2003 is dismissed with costs.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 858 OF 2003
MYEKHO BURUDI………….………………….……………….PLAINTIFF
VERSUS
ATTORNEY GENERAL…..……………………………….… DEFENDANT
R U L I N G
1. The Plaintiff/Applicant seeks that the Defendant’s Defence be struck out under Order VI Rule 13(1) (b) (c) (d) as the same does not disclose any reasonable defence, is scandalous, frivolous and vexatious and is fatally defective.
2. I have looked at the Plaint and the Defence. The Applicant’s sole quarrel with the Defence is that it denies that the Applicant was ever employed by the Government of Kenya. Exhibits “MBI” and “MBII” are a Letter of Appointment and a Kenya Police Certificate of Appointment respectively and they are annextures to the Supporting Affidavit. Exhibit MBIII is a copy of the Applicant’s payslip. I am told that on the basis of these documents, there cannot be a denial that the Applicant was employed.
3. I have come to a simple conclusion that the circumstances of the Applicant’s alleged dismissal ought to go to trial. The Defendant’s claim that he was never employed ought to go to trial.
As I understand it, once a triable issue is seen in a Defence then the same cannot be struck out.
4. In the instant case, I find that the Application to strike out the Defence is not merited, and all the issues raised should be canvassed at the trial and not on affidavit evidence.
5. The Application dated 6th November 2003 is hereby dismissed with costs.
Dated and delivered at Nairobi this 12th day of February 2004.
I. LENAOLA
Ag. JUDGE
12. 2.04
By Lenaola, Ag. J
Amos CC
Ruling delivered in the presence of:
Mr. Meso for the Defendant/Respondent
No appearance for Plaintiff/Applicant
I. LENAOLA
Ag. JUDGE