[1984] KEHC 63 (KLR)
The court found that, despite the plaintiff's production of a bundle of documents purporting to show the amount claimed, the documents were unsigned by the defendant and there was a dispute as to whether the defendant owed the sums claimed. The arguments presented by both parties revealed the existence of triable...
Source-derived case information.
- Citation
- [1984] KEHC 63 (KLR)
- Parties
- Plaintiff: Nakulines Ltd; Defendant: Tara Singh Dogra Civil Engineering Contractors
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 673 of 1982
- Procedural Posture
- Summary Judgment Application / Ruling on Notice of Motion for Summary Judgment
- Outcome
- application dismissed with costs
- Judges
- JA Aluoch
- Legal Topics
- Summary Judgment, Triable Issues, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nakulines Ltd
Plaintiff
Tara Singh Dogra Civil Engineering Contractors
Defendant
Procedural Posture
Summary Judgment Application / Ruling on Notice of Motion for Summary Judgment
Legal Issues
- 1 Whether the plaintiff is entitled to summary judgment under Order XXXV based on the documents produced.
- 2 Whether there exist triable issues that warrant a full hearing of the suit.
Ratio Decidendi
The court found that, despite the plaintiff's production of a bundle of documents purporting to show the amount claimed, the documents were unsigned by the defendant and there was a dispute as to whether the defendant owed the sums claimed. The arguments presented by both parties revealed the existence of triable issues that could not be resolved on affidavit evidence alone. Consequently, the court held that summary judgment was inappropriate in the circumstances and that the matter should proceed to a full hearing to allow for proper determination of the issues.
Court Disposition
application dismissed with costs
Orders
- The application for summary judgment is dismissed with costs to the defendant.
Full Case Text
Judgment text and source record
19 paragraphs
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO 673 OF 1982
NAKULINES LTD………………………………………………………..PLAINTIFF
AND
TARA SINGH DOGRA CIVIL ENGINEERING CONTRACTORS …..DEFENDANT
13/7/84
CORAM: ALUOCH, J
Mr Omwela for the plaintiff/applicant
Mr Sharma for Mr Rustan Hira for defendant/respondent
Int. – Moraya
RULING
The plaintiff/applicant moved the court by way of Notice of Motion under Order XXXV for Orders:
(1) That judgment be entered for the plaintiff as prayed in the plaint.
(2) That the defendant do pay to the plaintiff costs of this application.
The application was supported by the affidavit of Hywel Glyn Isaac, the Receiver Manager of the plaintiff company, and further reasons were adduced at the hearing. Also a bundle of documents was produced to support the application’s claim. The application was opposed by Mr Sharma, appearing for Mr Bustam Hira, on behalf of the defendant/respondent. The reasons are on record.
I have considered this application along side the bundle of documents produced in court a total of seventy (70) in all. According to the plaintiff/applicant, the documents, show how the sum claimed in the plaint was arrived at, but documents were not signed by them, as such proof will be required as to whether they owe the money mentioned thereunder or not. Because of the nature of arguments presented to me by the two learned lawyers during the hearing of the application I have come to the conclusion that there are triable issues in this case, which can only be determined at the hearing of the suit, as such, I am unable to enter summary judgment as was requested, but I proceed to dismiss the application with costs.
Dated at Nairobi this 13th Day of July 1984
J ALUOCH
JUDGE