[2005] KEHC 2188 (KLR)
The court found that the Defendants' defence was a sham, frivolous, vexatious, and an abuse of the process of the Court. The Defendants admitted to borrowing but failed to dispute the contractual basis for the sum claimed or the interest charged, and their pleadings did not raise any bona fide triable issues. The...
Source-derived case information.
- Citation
- [2005] KEHC 2188 (KLR)
- Parties
- Plaintiff: National Bank of Kenya Ltd; Defendant: Innovation Advertising Ltd; Defendant: George William Ogendi; Defendant: Iris Nduku Ogendi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 79 of 2003
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Defence and Enter Judgment
- Outcome
- Defence struck out; judgment entered for Plaintiff as prayed in the Plaint plus costs.
- Legal Topics
- Striking Out of Defence, Summary Judgment, Contractual Indebtedness, Secured Loans
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
National Bank of Kenya Ltd
Plaintiff
Innovation Advertising Ltd
Defendant
George William Ogendi
Defendant
Iris Nduku Ogendi
Defendant
Procedural Posture
Civil Case / Ruling on Application to Strike Out Defence and Enter Judgment
Legal Issues
- 1 Whether the defence filed by the Defendants is a sham and constitutes an abuse of the process of the Court.
- 2 Whether the Plaintiff is entitled to have the defence struck out and judgment entered as prayed in the Plaint.
Ratio Decidendi
The court found that the Defendants' defence was a sham, frivolous, vexatious, and an abuse of the process of the Court. The Defendants admitted to borrowing but failed to dispute the contractual basis for the sum claimed or the interest charged, and their pleadings did not raise any bona fide triable issues. The Plaintiff's evidence established the Defendants' indebtedness, and the Defendants' willingness to pay in installments did not constitute a substantive defence. Consequently, the court struck out the defence and entered judgment for the Plaintiff as prayed in the Plaint, including costs of the application.
Court Disposition
Defence struck out; judgment entered for Plaintiff as prayed in the Plaint plus costs.
Orders
- The defence on record is struck out.
- Judgment is entered for the Plaintiff against the Defendants as prayed in the Plaint.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
COMMERCIAL DIVISION – MILIMANI
CIVIL CASE NO. 79 OF 2003
NATIONAL BANK OF KENYA LTD :::::::::::::::::::::::::::::::::: PLAINTIFF
VERSUS
INNOVATION ADVERTISING LTD :::::::::::::::::::::::::: 1ST DEFENDANT
GEORGE WILLIAM OGENDI ::::::::::::::::::::::::::::::::::::2ND DEFENDANT
IRIS NDUKU OGENDI :::::::::::::::::::::::::::::::::::::::::::::::3RD DEFENDANT
RULING
The Plaintiff has brought this Chamber Summons under the provisions of Order VI Rule 13 (1) (b) and (d) of the Civil Procedure Rules, Section 3A of the Civil Procedure Act and all the enabling provisions of the Law. It seeks am order that the defence filed in this suit be struck out for being an abuse of the due process of the Court.
The grounds for the Application are that the defence filed is a sham evasive an elaborate unmitigated untruth, frivolous and vexatious and constitutes a flagrant and undisguised abuse of the process of the Court. The Application is supported by an affidavit sworn on 23rd March 2004 by one J.O. Konchellah the Manager of the Plaintiff.
The Defendants’ answer to the Application is in the form of a Replying Affidavit by the 2nd Defendant sworn on the authority of all the Defendants. There are also Grounds of Opposition filed on behalf of the Defendants by the Defendant’s Legal Advisors.
The application came up for hearing before me on 11th march 2005. Mr. Mose Learned Counsel was instructed for the Plaintiff/Applicant. Counsel for the Respondent/Defendant did not attend at the hearing despite the fact that he had been served with a hearing notice. The application therefore proceeded ex parte.
Counsel for the Applicant took me through the pleadings, the affidavits and annexturesThe affidavit evidence availed shows that the 1st Respondent applied for and was granted banking/overdraft facilities by the Plaintiff. These facilities were secured by properties owned by the 2nd and 3rd Respondents. The 2nd and 3rd Respondents as directors of the 1st Respondent also guaranteed repayment of the facilities accessed by the 1st Respondent from the Applicant. The evidence further shows that the Respondents are indeed indebted to the Applicant and previously made proposals for repayment which proposals were never fulfilled. The Applicant has further shown how the Respondents’ indebtedness has risen to the sum claimed.
The Respondents’ Grounds of Opposition, Replying Affidavit and statement of defence do not answer the Applicant’s claim. The Defendants admit having borrowed Kshs 1. 1 million but not the sum claimed of Kshs 3,011,428. 95. The challenge is made against interest charged and yet the documents show that the same is contractual. At paragraph 5 of the defence the Respondents aver that they are ready and willing to pay the correct amount in reasonable installments. I find and hold that the defence on record is a sham and does not raise bona fide triable issues.
In my view a defence which is a sham is not serious and I find and hold that the defence on record is frivolous and vexatious and amounts to abuse of the process of the Court. The same is struck out. I see no reason why I should not enter judgment against the Defendants. Accordingly the further order of this Court is that judgment be and is hereby entered for the Plaintiff against the Defendants as prayed in the Plaint plus costs of this Application.
DATED AND DELIVERED AT NAIROBI THIS 26TH DAY OF APRIL, 2005.
F. AZANGALALA
JUDGE
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