[2014] KEHC 2330 (KLR)
The court found that the Defence filed by the Defendant was not a mere denial but raised a triable issue, particularly regarding the circumstances under which the Plaintiff proceeded to complete and hand over the construction works despite alleged non-payment of interim certificates. The court noted that the...
Source-derived case information.
- Citation
- [2014] KEHC 2330 (KLR)
- Parties
- Plaintiff: Seyani Brothers & Company Limited; Defendant: Affiliated Business Contacts Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 178 of 2013
- Procedural Posture
- Civil Suit / Ruling on Application to Strike Out Defence and for Summary Judgment
- Outcome
- application dismissed with costs to the defendant
- Judges
- DO Ogembo
- Legal Topics
- Summary Judgment, Striking Out Defence, Contractual Obligations, Triable Issues
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Seyani Brothers & Company Limited
Plaintiff
Affiliated Business Contacts Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Strike Out Defence and for Summary Judgment
Legal Issues
- 1 Whether the Defendant's Defence raises any triable issues warranting a full hearing.
- 2 Whether the Plaintiff is entitled to summary judgment as prayed in the application.
Ratio Decidendi
The court found that the Defence filed by the Defendant was not a mere denial but raised a triable issue, particularly regarding the circumstances under which the Plaintiff proceeded to complete and hand over the construction works despite alleged non-payment of interim certificates. The court noted that the interpretation of the contractual documents, which are voluminous and complex, requires a full trial with input from both parties. As such, the threshold for striking out a defence or granting summary judgment was not met, and the application was dismissed to allow the matter to proceed to trial.
Court Disposition
application dismissed with costs to the defendant
Orders
- The Plaintiff's application to strike out the Defence and for summary judgment is dismissed.
- Costs of the application are awarded to the Defendant/Respondent.
Full Case Text
Judgment text and source record
26 paragraphs
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL & ADMIRALTY DIVISION
CIVIL SUIT NO.178 OF 2013
SEYANI BROTHERS & COMPANY LIMITED……………………PLAINTIFF
VS.
AFFLIATED BUSINESS CONTACTS LIMITED ……………..…DEFENDANT
R U L I N G
The application before the Court is a Notice of Motion dated 8th October 2013. The application seeks the following Orders:
That the Defendant’s Defence dated 21st June, 2013 be struck out and summary Judgement be entered in favor of the Plaintiff and against the Defendant as prayed in the Plaint.
That the cost of this application and the suit be borne by the Defendant.
The application is premised on the grounds stated herein and is supported by Affidavit of HIRJI KHIMJI SEYANI dated 8th October 2013.
The application is opposed by Grounds of Opposition and Replying Affidavit filed on 7th February 2014. The Replying Affidavit is sworn by ZEPHANIAH GITAU MBUGUA.
The brief history of the application is that the Plaintiff vide a Plaint filed in Court on 10th May 2012 claims a balance of Kshs. 42,998,667. 58 with interest of 20% p.a from the Defendant as account of a contractual obligation under which the Plaintiff alleges to have carried out certain construction works on the suit property amounting to Kshs.61,510,064. 10 part of which was paid. The Plaintiff alleges that it carried out the construction works and handed over the premise to the Defendant who has now refused or failed to pay the said balance. The Plaintiff alleges that the Defendant entered appearance and filed a Defence in response to the suit, but that the said Defence is laden with mere denials and does not raise any triable issues, hence this application to strike it off.
In response Mr. Zephaniah Gitau Mbugu who has deponed in the Replying Affidavit that he is a Director of the Defendant’s company states that there is a good defence to the claims and that the Defendant has specifically denied that it breached terms of the agreement between it and the Plaintiff, and further that the issues can best be determined in a full hearing.
I have carefully considered the application and the submissions of the parties. The only issue I wish to raise for determination is whether or not there are triable issues in the suit.
It is now a well settled position that a Court of law can only strike out a defence, or enter summary judgement on the most clear of cases. Where there is the slightest of doubt the Court cannot exercise such discretion as such a doubt obliterates the Courts discretion. I have considered the Defence herein. It does not seem to me to be a mere defence. Of greater importance, however is the conduct of the Plaintiff. The Plaintiff alleges that it completed the construction of the suit property and then handed them over to the Defendant and the Defendant refused or failed to honour the interim certificates number 13 and 2. The question which arises to an ordinary mind is why would the Plaintiff issue Interim Certificates which are not paid by the Defendant and the Plaintiff nonetheless proceeds to complete the works and hand over the premises to the Defendant? When the Defendant states in the Defence that it had not breached the terms of the contract, I think, this becomes a triable issue. The Plaintiff should explain in a trial process how, despite issuing Interim Certificate which were not paid, it proceeded to complete the works and hand them over to the Defendant. The Defendant will also be heard on how this action was possible.
It may also be that there is a good explanation for the Plaintiff’s action, and that explanation is contained in the contractual document. However, that contractual document as annexed to the application is a huge document running to over 50 pages. The interpretation of that document, and the determination of the terms thereof, cannot be left only to this court. It is a process which requires the input of all the parties in a trial.
For the said reasons I am not satisfied that this application is merited, and I dismiss it with costs to the Defendant/Respondent.
Orders accordingly.
Dated, Read and Delivered at NAIROBI this 26th Day of September 2014.
E.K.O OGOLA
JUDGE
Present:-
Bundotich for Plaintiff
M/S. Kimani holding brief Njeru for Defendant
Teresia – Court clerk