[1997] KEHC 50 (KLR)
The court found that the defendant's defence and counterclaim raised triable issues, including the authenticity of the documents relied upon by the plaintiff and the allegation of overcharging. As such, the matter could not be resolved summarily, and the defendant should be allowed to defend the suit...
Source-derived case information.
- Citation
- [1997] KEHC 50 (KLR)
- Parties
- Plaintiff: Sandi Samani t/a Cosmos Motors Spares; Defendant: Tread Setters Tyres Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1377 of 1995
- Procedural Posture
- Civil Case / Ruling on Application for Summary Judgment and to Strike Out Defence and Counterclaim
- Outcome
- application dismissed
- Legal Topics
- Summary Judgment, Striking Out Pleadings, Triable Issues, Abuse of Court Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sandi Samani t/a Cosmos Motors Spares
Plaintiff
Tread Setters Tyres Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Application for Summary Judgment and to Strike Out Defence and Counterclaim
Legal Issues
- 1 Whether the defendant's defence and counterclaim should be struck out as frivolous and an abuse of court process.
- 2 Whether the plaintiff is entitled to summary judgment under Order 35 of the Civil Procedure Rules.
- 3 Whether there are triable issues warranting a full hearing.
Ratio Decidendi
The court found that the defendant's defence and counterclaim raised triable issues, including the authenticity of the documents relied upon by the plaintiff and the allegation of overcharging. As such, the matter could not be resolved summarily, and the defendant should be allowed to defend the suit unconditionally. The application for summary judgment and to strike out the defence and counterclaim was therefore dismissed with costs to the defendant.
Court Disposition
application dismissed
Orders
- The plaintiff's application for summary judgment and to strike out the defence and counterclaim is dismissed with costs.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL CASE NO.1377 OF 1995
SANDI SAMANI T/A COSMOS MOTORS SPARES.....................PLAINTIFF VERSUS TREAD SETTERS TYRES LTD.................................DEFENDANTS
R U L I N G
The plaintiff seeks to have the defendant's defence and counter claim struck out for being frivolous and an abuse of the court process and judgment be entered as prayed in the plainItn. submission, the plaintiff counsel stated that the application is for summary judgment under order 35 of the Civil Procedure Rules. The plaintiff claims a sum of Kshs.408,058/20 as the agreed or reasonable charges for goods delivered and or services rendered to the defendant.
The application is opposed. It is urged that, it is the plaintiff who owes the defendant Kshs.450,000/= the sum counter claimed in the defence and counter claim, on account of overcharging by the plaintiff.
It is submitted that, supporting documents to show that the plaintiff claim is founded, are suspect documents and not from the defendant company. They are addressed to a company called COMTRA Ltd. but cancelled to read the plaintiff's firms name. The plaintiff's prices were grossly exaggerated.
I am satisfied that the defendant be given leave to unconditionally defend the suit as there are triable issues.
The plaintiff's application is therefore dismissed with costs.
Dated and Delivered this 14th day of March 1997
in the presence of:
No appearance for plaintiff
Mrs. Muchiri for defendant
M. OLE KEIWUA
JUDGE