[2009] KEHC 828 (KLR)
The court found that the defence filed by the defendants was scandalous, frivolous, and vexatious, amounting to an abuse of the court process. The defence denied the occurrence of an accident despite available evidence, rendering it a sham. The court held that allowing such a defence would delay the fair trial of...
Source-derived case information.
- Citation
- [2009] KEHC 828 (KLR)
- Parties
- Plaintiff: Saturnino Carcellar Machancoses; Defendant: Horatius Da Gama Rose; Defendant: Fernanda Da Gama Rose
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 649 of 2007
- Procedural Posture
- Civil Suit / Ruling on Chamber Summons to Strike Out Defence
- Outcome
- Defence struck out; suit to proceed to formal proof.
- Judges
- JM Khamoni
- Legal Topics
- Striking Out of Pleadings, Abuse of Court Process, Frivolous and Vexatious Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Saturnino Carcellar Machancoses
Plaintiff
Horatius Da Gama Rose
Defendant
Fernanda Da Gama Rose
Defendant
Procedural Posture
Civil Suit / Ruling on Chamber Summons to Strike Out Defence
Legal Issues
- 1 Whether the defence filed by the defendants is scandalous, frivolous, vexatious, or an abuse of the court process.
- 2 Whether the defence should be struck out to prevent delay of the fair trial of the suit.
Ratio Decidendi
The court found that the defence filed by the defendants was scandalous, frivolous, and vexatious, amounting to an abuse of the court process. The defence denied the occurrence of an accident despite available evidence, rendering it a sham. The court held that allowing such a defence would delay the fair trial of the suit. Consequently, the court exercised its discretion under the Civil Procedure Rules to strike out the defence and ordered the suit to proceed to formal proof, ensuring the efficient administration of justice.
Court Disposition
Defence struck out; suit to proceed to formal proof.
Orders
- The defendants' defence is struck out.
- The suit to proceed to formal proof.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT NAIROBI
MILIMANI LAW COURTS
Civil Suit 649 of 2007
SATURNINO CARCELLAR MACHANCOSES....................PLAINTIFF/APPLICANT
VERSUS
HORATIUS DA GAMA ROSE.................................. 1ST DEFENDANT/RESPONDENT
FERNANDA DA GAMA ROSE............................... 2ND DEFENDANT/RESPONDENT
RULING
Having carefully considered what was brought before me during the hearing of this chamber summons dated 12th June 2008, the same be and is hereby granted as I do entirely agree with the learned counsel for the plaintiff/Applicant when he states, supporting the chamber summons, that the defence filed by the defendants in this suit sis scandalous, frivolous and vexatious; it is otherwise an abuse of the court process and it will delay the fair trial of this suit. A defence which despite available evidence of the fact of the accident, denies the fact of the occurrence of that accident, must be a sham defence.
Accordingly, the defendant’s defence in this suit is hereby struck out and the suit to proceed formal proof.
The Defendants/respondents to pay costs of this Chamber Summons.
Delivered this 3rd day of July 2009.
J.M. KHAMONI
JUDGE