Kenya Judgment

High Court · High Court at Nairobi (Milimani Law Courts)

OMAR MOHAMMED & 3 OTHERS vs ASTROL ENTERPRISES LTD. & 2 OTHERS [2003] KEHC 732 (KLR)

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Professional case brief

Research organized from the available case record

Source document

01

Holding and result

The court found that the defence filed was a mere denial and did not raise any reasonable ground of defence or triable issue. The argument that the agreement was signed by only one plaintiff did not constitute a valid defence, as liability to one does not absolve the defendant from liability to the named plaintiff. The court was satisfied that there was no defence to the claim and, accordingly, struck out the defence and entered summary judgment in favour of the plaintiffs as prayed, with costs.

Court disposition

Summary judgment entered for the plaintiffs; defence struck out.

Orders

  • Defence struck out.
  • Judgment entered in favour of the plaintiffs as prayed.
  • Plaintiffs awarded costs of the application and the main case.

02

Material facts

Parties

Omar Mohammed & 3 others

Plaintiff Counsel: Mr. Ndunda

Astrol Enterprises Ltd. & 2 others

Defendant

Amounts and remedies

  • Agreed Cost of Transport: KES 816,553.4

03

Procedural history

  1. Posture

    Civil Case / Ruling on Notice of Motion for Summary Judgment

04

Questions and positions

Legal issues

Party arguments

Applicant
The plaintiffs argue that the cost of transport was agreed at Kshs.816,553.40, evidenced by an agreement dated 12.8.2000, and that the defendants have failed to pay. They contend that the defence is a mere denial and does not raise any triable issue, thus summary judgment should be entered in their favour.
Respondent
The defendants, through Mr. Mugo, oppose the application on the basis that the agreement is signed only by the first plaintiff and not the other three, and the plaintiff does not specify who is owed the money. They argue this raises an arguable point and that summary judgment should not be granted.

05

Court’s reasoning

  1. 01

    Order 35 of the Civil Procedure Rules

    Summary judgment should only be granted where there is clearly no defence to the claim and no arguable point on behalf of the defendant.

  2. 02

    Order 35 of the Civil Procedure Rules

    A mere denial in the defence is insufficient to resist summary judgment; the defendant must show a reasonable ground of defence.

  3. 03

    Court's reasoning in this ruling

    Liability to one person under an agreement does not absolve the defendant from liability, even if other claimants are not signatories.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the defence filed was a mere denial and did not raise any reasonable ground of defence or triable issue. The argument that the agreement was signed by only one plaintiff did not constitute a valid defence, as liability to one does not absolve the defendant from liability to the named plaintiff. The court was satisfied that there was no defence to the claim and, accordingly, struck out the defence and entered summary judgment in favour of the plaintiffs as prayed, with costs.

Obiter and limits

  • The purpose of Order 35 is to avoid a multiplicity of suits and to expedite the passing of a decree in cases where there is absolutely no defence to the claim.
  • The court must be satisfied not only that there is no defence but also that there is no arguable point to be argued on behalf of the defendants.

Court disposition

Summary judgment entered for the plaintiffs; defence struck out.

  • Defence struck out.
  • Judgment entered in favour of the plaintiffs as prayed.
  • Plaintiffs awarded costs of the application and the main case.

Source and reliance status

High Court

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Judgment reading view

Judgment text

The complete available source text.

Source document

High Court

Judgment

[2003] KEHC 732 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT KENYA AT NAIROBI H.C.CIVIL CASE NO.1171 OF 2002

OMAR MOHAMMED & (3) THREE OTHERS ………… PLAINTIFFS

VERSUS ASTROL ENTERPRISES LTD. & (2) OTHERS .……… DEFENDANTS

RULING

This is an application by way of Notice of Motion of 10. 9.2002 asking for an order to strike off the defence filed in this suit and entry of summary judgement under Order 35 Rules 1, 2 and 3 and Order 50 Rule 1 of the Civil Procedure Rules and Section 3A of the Act.

Supporting affidavit by Mohammed Hassan sworn on 17. 9.2000 says that the cost of transport was agreed at Kshs.816,553. 40 but the Defendant has failed to pay it. The agreement dated 12. 8.2000 is exhibited between the Defendants and purported plaintiffs and is signed only by first Plaintiff and not the other three and this has been supported by Mr. Mugo in his opposition to the application saying the Plaintiff does not say who it is that is owed the money.

The principle applicable is that where Defendant shows defence on the merits to have leave to defend summary judgement cannot be ordered. The purpose of Order 35 is to avoid a multiplicity of suits and to expedite the passing of a decree in a case where there is absolutely no defence to the claim.

The Court must be satisfied not only that there is no defence but also that there is no arguable point to be argued on behalf of the Defendants. The defendant must show that he has some reasonable ground of defence to the action. Here the defence is a denial merely but in his submissions the defendant counsel raised the point that the agreement is signed by one Plaintiff but that is not a defence because of liability to one person may only bar other claimants from bringing any fuller claims besides it does not absolve liability against the named defendant.

I am satisfied having considered the affidavit and the application that there is no defence to the claim and same is hereby struck off and judgement entered in favour of the Plaintiff as prayed with costs to this application with cost of the main case and of the application.

DELIVERED at Nairobi this 23rd day of May 2003.

A.I. HAYANGA

JUDGE

Read to –

Mr. Ndunda for Applicant

No appearance for Respondent

23. 5.2003

Source wording is retained. Consult the source document for its original formatting and pagination.

Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Order 35 Rules 1, 2 and 3 of the Civil Procedure Rules

Legislation

Legislation referenced in the available case record.

Order 50 Rule 1 of the Civil Procedure Rules

Legislation

Legislation referenced in the available case record.

Section 3A of the Civil Procedure Act

Legislation

Legislation referenced in the available case record.

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