[2003] KEHC 732 (KLR)
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....
Source-derived case information.
- Citation
- [2003] KEHC 732 (KLR)
- Parties
- Plaintiff: Omar Mohammed & 3 others; Defendant: Astrol Enterprises Ltd. & 2 others
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1171 of 2002
- Procedural Posture
- Civil Case / Ruling on Notice of Motion for Summary Judgment
- Outcome
- Summary judgment entered for the plaintiffs; defence struck out.
- Judges
- AI Hayanga
- Legal Topics
- Summary Judgment, Striking Out Defence, Affidavit Evidence, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Omar Mohammed & 3 others
Plaintiff
Astrol Enterprises Ltd. & 2 others
Defendant
Procedural Posture
Civil Case / Ruling on Notice of Motion for Summary Judgment
Legal Issues
- 1 Whether the defence filed by the defendants discloses any reasonable ground of defence to the plaintiff's claim.
- 2 Whether summary judgment should be entered in favour of the plaintiffs under Order 35 of the Civil Procedure Rules.
- 3 Whether the agreement signed by only one plaintiff affects the enforceability of the claim against the defendants.
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.
Court Disposition
Summary judgment entered for the plaintiffs; defence struck out.
Orders
- Defence struck out.
- Judgment entered in favour of the plaintiffs as prayed.
Full Case Text
Judgment text and source record
16 paragraphs
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