[1998] KEHC 176 (KLR)
The court found that the defendant was bound by the hire purchase agreement and had breached its terms by failing to complete payment and selling the vehicle to a third party. The defendant's claim of full payment was unsupported by evidence. The court held that there were no triable issues raised by the defendant...
Source-derived case information.
- Citation
- [1998] KEHC 176 (KLR)
- Parties
- Plaintiff: Premier Savings & Finance Limited; Defendant: Al Nasir Peer Mohamed
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 3150 of 1997
- Procedural Posture
- Civil Suit / Ruling on Summary Judgment Application
- Outcome
- judgment for the plaintiff
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Hire Purchase Agreement, Summary Judgment, Breach of Contract, Payment of Debt
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Premier Savings & Finance Limited
Plaintiff
Al Nasir Peer Mohamed
Defendant
Procedural Posture
Civil Suit / Ruling on Summary Judgment Application
Legal Issues
- 1 Whether the defendant is liable to pay the outstanding sum under the hire purchase agreement.
- 2 Whether there are any triable issues that justify a full trial.
- 3 Whether summary judgment should be entered for the plaintiff.
Ratio Decidendi
The court found that the defendant was bound by the hire purchase agreement and had breached its terms by failing to complete payment and selling the vehicle to a third party. The defendant's claim of full payment was unsupported by evidence. The court held that there were no triable issues raised by the defendant and that the plaintiff's claim was clear and merited summary judgment. Accordingly, judgment was entered for the plaintiff as prayed in the plaint, together with costs.
Court Disposition
judgment for the plaintiff
Orders
- Judgment is entered for the plaintiff against the defendant as prayed in the plaint.
- The plaintiff shall have the costs of this application.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL SUIT NO. 3150 OF 1997
PREMIER SAVINGS & FINANCE LIMITED.................................PLAINTIFF
-versus-
AL NASIR PEER MOHAMED.......................................................DEFENDANT
R U L I N G
This is an application by way of Notice of Motion Civil Procedure rules and section 3A of the Civil Procedure Act for an order that summary judgment be entered against the defendant in the sum of Kshs. 2,116,650. 40 with interest as prayed in the plaint.
The application is supported by an affidavit sworn by one Zaitun Esmail a Senior Manager of the plaintiff company. It is opposed and grounds of objection have been filed on behalf of the defendant.
I have gone through the pleadings, the application and submissions made by both learned counsel. It is trite law that the summary procedure which the plaintiff has applied for should be exercised only in plain and obvious case. It must be clear that the defendant has no answer to the plaintiffs claim, that there is no defence on merit and no triable issues that justify a full trial.
The plaintiff’s claim herein is grounded on a hire purchase agreement where the plaintiff advanced the defendant some money to purchase a motorvehicle. The defendant made some payments, and then sold the car to a thirdy party before he completed payment. That agreement is art of the evidence before the court.
Demand was made. The defendant wrote out some cheques in payment of the balance. They were dishonoured. He wrote to the plaintiff arranging payment and at one stage offering to settle the matter at a sum lower than what was owing. This was not acceptable to the plaintiff.
The defendant has alleged that he has paid the sum due in full under the agreement. He who alleges must prove. I have not seen any such proof.
The defendant is bound by the agreement he executed. he has breached the same. I see no triable issues in this matter accordingly I enter judgment for the plaintiff against the defendant as prayed in the plaint.
The plaintiff shall also have the costs of this application.
Orders accordingly.
Dated and delivered at Nairobi this 31st day of March, 1998.
A. MBOGHOLI MSAGHA
JUDGE
Majanja for Weda for plaintiff/applicant
No appearance for defendant/respondent