[2005] KEHC 2253 (KLR)
The court found that the defendant's defence was not a sham and disclosed triable issues, particularly concerning whether the alleged sale was null and void for lack of Land Control Board consent. The existence of a written agreement and the defendant's counsel being a witness did not eliminate the need for a full...
Source-derived case information.
- Citation
- [2005] KEHC 2253 (KLR)
- Parties
- Plaintiff: Rebecca Waithira Joseph; Plaintiff: Abel Nguru Kimondo; Defendant: Hannah Wambui Kibu
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Case 198 of 2001
- Procedural Posture
- Civil Case / Ruling on Chamber Summons to Strike Out Defence
- Outcome
- application dismissed
- Legal Topics
- Striking Out of Defence, Triable Issues, Land Control Board Consent
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Rebecca Waithira Joseph
Plaintiff
Abel Nguru Kimondo
Plaintiff
Hannah Wambui Kibu
Defendant
Procedural Posture
Civil Case / Ruling on Chamber Summons to Strike Out Defence
Legal Issues
- 1 Whether the defendant's defence discloses any reasonable defence to the plaintiffs' claim.
- 2 Whether the defence should be struck out for being a sham.
- 3 Whether there are triable issues warranting a full hearing, specifically regarding the validity of the sale for lack of Land Control Board consent.
Ratio Decidendi
The court found that the defendant's defence was not a sham and disclosed triable issues, particularly concerning whether the alleged sale was null and void for lack of Land Control Board consent. The existence of a written agreement and the defendant's counsel being a witness did not eliminate the need for a full hearing on these issues. Therefore, the application to strike out the defence was dismissed to allow the matter to proceed to trial.
Court Disposition
application dismissed
Orders
- The Chamber Summons dated 17th January, 2002 is dismissed.
- The defendant/respondent receives no costs of this Chamber Summons.
Full Case Text
Judgment text and source record
7 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYERI Civil Case 198 of 2001REBECCA WAITHIRA JOSEPH) ABEL NGURU KIMONDO )…………………….……………….PLAINTIFF Versus HANNAH WAMBUI KIBU……………………………………..…….DEFENDANT
RULING In Chamber Summons dated 17th January, 2002, the two Plaintiffs/Applicants want the Defendant’s/Respondent’s defence herein be struck out for disclosing no defence.
During the hearing of this Chamber Summons, there was no appearance for the Defendant/Respondent and the Applicants did not say much. It is not clear why the Defendant who filed a defence is not reacting to summonses relating to this Chamber Summons and has therefore not filed a replying affidavit. The Chamber Summons is brought underSection 3A of the Civil Procedure Act and Order IXA of the Civil Procedure Rules.
I have read the plaint, the defence and the affidavit supporting this Chamber Summons and do not find the Defendant’s defence to be a sham because even if there is a written agreement and the Defendant’s counsel is a witness to all transactions, there are triable issues such as whether the alleged sale is null and void for lack of consent of the Land Control Board.
Accordingly, the Chamber Summons dated 17th January, 2002 is hereby dismissed. The Defendant/Respondent receives no costs of this Chamber Summons as she did not come out to oppose it.
Dated this 1st day of July, 2005.
J. M. KHAMONI JUDGE