[2013] KEHC 972 (KLR)

[2013] KEHC 972 (KLR)

The court found that the plaintiff's application for summary judgment and striking out of the defence was fundamentally flawed because it was brought under the summary judgment procedure (Order 36), which is only available where a defendant has appeared but not filed a defence. In this case, the defendant had filed a defence, making the application incompetent. Furthermore, the court noted that the defendant's defence raised allegations of misrepresentation and fraud, which constitute bona fide triable issues that should be determined at a full hearing. The court also held that procedural errors in citing the correct order or rule are not fatal if they do not affect the substance, but in...

Citation
[2013] KEHC 972 (KLR)
Parties
Plaintiff: Samuelson (E.A.) Limited; Defendant: Jenard Josiah Nyaga
Court
High Court
Court Station
High Court at Nairobi (Milimani Commercial Courts)
Jurisdiction
Kenya
Judgment Date
19 November 2013
Case Number
Civil Case 630 of 2012
Procedural Posture
Civil Case / Ruling on Application for Summary Judgment and Striking Out of Defence
Outcome
application dismissed
Judges
JB Havelock
Legal Topics
Summary Judgment, Striking Out of Pleadings, Principal Agent Relationship, Commission Agency, Triable Issues
Source Language
English
Civil Procedure Commercial and Corporate Summary Judgment Striking Out of Pleadings Principal Agent Relationship Commission Agency Triable Issues

Case Brief

Summary, issues, holding and outcome

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Parties

Samuelson (E.A.) Limited

Plaintiff

Jenard Josiah Nyaga

Defendant

Procedural Posture

Civil Case / Ruling on Application for Summary Judgment and Striking Out of Defence

Legal Issues

  1. 1 Whether the plaintiff's application for summary judgment and striking out of the defence is properly grounded under the Civil Procedure Rules.
  2. 2 Whether the defendant's defence raises bona fide triable issues warranting a full hearing.
  3. 3 Whether procedural defects in citing the correct order/rule are fatal to the application.

Ratio Decidendi

The court found that the plaintiff's application for summary judgment and striking out of the defence was fundamentally flawed because it was brought under the summary judgment procedure (Order 36), which is only available where a defendant has appeared but not filed a defence. In this case, the defendant had filed a defence, making the application incompetent. Furthermore, the court noted that the defendant's defence raised allegations of misrepresentation and fraud, which constitute bona fide triable issues that should be determined at a full hearing. The court also held that procedural errors in citing the correct order or rule are not fatal if they do not affect the substance, but in...

Court Disposition

application dismissed

Orders

  • The plaintiff's application dated 23rd April 2013 is struck out with costs to the defendant.