[2002] KEHC 632 (KLR)
The court found that the defendants had admitted part of the debt and had executed promissory notes, with the second defendant personally endorsing them, signifying personal liability. The defence filed was deemed a sham, intended only to delay payment, and did not raise any genuine triable issues. The court held...
Source-derived case information.
- Citation
- [2002] KEHC 632 (KLR)
- Parties
- Plaintiff: Narodhas (K) Ltd.; Defendant: Bandari Electrical & Hardware Ltd; Defendant: Mustafa M. K. Lakha
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 712 of 1991
- Procedural Posture
- Civil Case / Ruling on Application for Summary Judgment
- Outcome
- Application allowed. Summary judgment entered for the plaintiff as prayed in the plaint, with interest at court rates from the date of filing until payment in full, plus costs.
- Legal Topics
- Promissory Notes, Summary Judgment, Loan Repayment, Interest Rates
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Narodhas (K) Ltd.
Plaintiff
Bandari Electrical & Hardware Ltd
Defendant
Mustafa M. K. Lakha
Defendant
Procedural Posture
Civil Case / Ruling on Application for Summary Judgment
Legal Issues
- 1 Whether the defendants are liable to pay the sum claimed by the plaintiff under the promissory notes.
- 2 Whether the defence raises any triable issues to warrant a full trial.
- 3 Whether the plaintiff is entitled to summary judgment as prayed in the plaint.
Ratio Decidendi
The court found that the defendants had admitted part of the debt and had executed promissory notes, with the second defendant personally endorsing them, signifying personal liability. The defence filed was deemed a sham, intended only to delay payment, and did not raise any genuine triable issues. The court held that the plaintiff was entitled to summary judgment as prayed in the plaint. However, due to the long delay in prosecution, the court exercised its discretion to award interest at court rates from the date of filing the suit until payment in full, rather than the higher contractual rate claimed by the plaintiff.
Court Disposition
Application allowed. Summary judgment entered for the plaintiff as prayed in the plaint, with interest at court rates from the date of filing until payment in full, plus costs.
Orders
- Summary judgment is entered for the plaintiff for the sum claimed in the plaint.
- Interest shall be at court rates from the date of filing of the suit until payment in full.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL CASE NO.712 OF 1991
NARODHAS (K) LTD. ……………………………………… PLAINTIFF
VERSUS
BANDARI ELECTRICAL & HARDWARE LTD …… 1ST DEFENDANT
MUSTAFA M. K. LAKHA …………………………… 2ND DEFENDANT
R U L I N G
This suit was filed in 1991. The plaint claims Shs.4,731,710. 35 with interest at 4. 5% per month from 1/4/91 until payment in full.
Defendants denies the claim but admits owing some money unspecified under paragraph 3 of the statement of defence.
In the exhibit numbered 18 – an affidavit of Murtafa Lakha filed on 25. 10. 91, the 2nd defendant swore that they were indebted in the sum not exceeding Sh.1,356,597. 05. There is long delay in the prosecution of this suit which the plaintiff explains in paragraphs 10 and 11 of the replying affidavit. It is surprising the defendants have not thought of applying or dismissal of suit for want of prosecution.
Be that as it may, I have perused the replying affidavit of Mr. Lakha and I see that he disputes the claim against himself, and makes other allegations. However in the defence paragraph 3 is made for both defendants.
I have examined the promissory notes exhibited and it is clear the second defendant endorsed his signature on the same signifying his personal liability. Since this suit was filed no payment has been made although there was admission of part of the claim.
In the circumstances of this case I am satisfied that the Plaintiff is entitled to judgment as prayed in the plaint. However the rate of interest shall be at court rates from the date the suit was filed.
There is no defence to the Plaintiffs claim what the Defendant are proposing to do is to delay the day of judgment by raising disputes where there is none. The exhibits speak for the themselves. They issued the promissory notes and have failed to honour them. They have not denied taking the loan in the first place. The defence filed is a sham for the purpose of delaying payments.
It is in the interest of justice that litigation should come to an end to avoid clogging the court diary. In a clear case such as this the Plaintiff is entitled to judgment. The issues raised as to interest cannot be triable issues. The parties agreed to the rate of interest and the court will not interfere with such agreements. However in this case where there has been so much delay, the interest shall be at court rates from date of filing of the suit till payment in full.
The application is allowed, summary judgment is entered for plaintiff as prayed in the plaint, together with costs of this application.
Dated at Mombasa this 19TH Day of June, 2002.
J. KHAMINWA COMMISSIONER OF ASSIZE
Read in presence of Mr. Mogaka and Mr. Njoroge.
J. KHAMINWA COMMISSIONER OF ASSIZE 19. 6.2000