[1999] KEHC 153 (KLR)
The court found that the defence filed by the defendant raised triable issues, particularly regarding the alleged unilateral alteration of the agreement by the plaintiff and the circumstances under which the contract was frustrated. The court held that striking out a defence is a drastic remedy and should only be...
Source-derived case information.
- Citation
- [1999] KEHC 153 (KLR)
- Parties
- Plaintiff: Rose Wathiru Waruinge; Defendant: John Njenga Kimani
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 374 of 1997
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Defence
- Outcome
- application dismissed
- Judges
- JL Osiemo
- Legal Topics
- Striking Out Pleadings, Breach of Contract, Specific Performance, Triable Issues
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rose Wathiru Waruinge
Plaintiff
John Njenga Kimani
Defendant
Procedural Posture
Civil Case / Ruling on Application to Strike Out Defence
Legal Issues
- 1 Whether the defence should be struck out under Order VI Rule 13(b), (c), and (d) of the Civil Procedure Rules.
- 2 Whether the defence raises triable issues warranting a full trial.
- 3 Whether the plaintiff's application is competent given the grounds stated.
Ratio Decidendi
The court found that the defence filed by the defendant raised triable issues, particularly regarding the alleged unilateral alteration of the agreement by the plaintiff and the circumstances under which the contract was frustrated. The court held that striking out a defence is a drastic remedy and should only be exercised where the defence is plainly unsustainable. Since the defence disclosed issues that required examination at trial, the application to strike out the defence was dismissed. The court also noted that the application was not incompetent for failure to state the grounds in general terms, but the substantive issue was whether the defence raised triable issues, which it did.
Court Disposition
application dismissed
Orders
- The application to strike out the defence is dismissed with costs.
Full Case Text
Judgment text and source record
8 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA CIVIL CASE NO. 374 OF 1997 ROSE WATHIRU WARUINGE………………………. PLAINTIFF VERSUS JOHN NJENGA KIMANI ……………………………… DEFENDANT
RULING
This application by way of chamber summons brought under Order VI Rule 13(b) (c) and (d) and Order XXV Rule 1 & 2 Civil Procedure Rules seeks orders that the defence herein be struck out. The application is opposed. The parties entered into a sale agreement on 18. 2.94 whereby the defendant agreed to sell and the plaintiff agreed to purchase 3 acres out of L.R. No. 2246/4 Langata pursuant to the said agreement. The plaintiff paid the defendant a sum of Sh.400,000/- part payment, which was fully acknowledged by the defendant. The sale never went through. The plaintiff claimed breach of the part of the defendant and filed this suit claiming special damages as well as general damages for breach of contract. In the alternative he sought orders for specific performance.
The defendant filed a defence claiming that the plaintiff had unilaterally altered the agreement in respect of the acreage to be excised and therefore the agreement was frustrated. The defendant contends that by reason of the plaintiff’s alteration of a material part of the agreement, the sale fell through when time lapsed and no mutual extension of completion date set or agreed upon, thereby the plaintiff frustrated the contract further. Counsel for the defendants submit that the plaintiff’s application is incompetent in that it does not state in general terms the grounds of the application. Further he submits that the defence raises triable issues. I have perused the defence and I am satisfied that it raises triable issues and I agree with the counsel for the defendant’s submission that this suit should proceed to trial.
This application is therefore dismissed with costs.
Dated and delivered at Nairobi this 16th day of March, 1999.
J.L.A. Osiemo
JUDGE