[2006] KEHC 2502 (KLR)
The court found that the plaintiff's averment denying the existence of a charge over Uasin Gishu Settlement Scheme/123 was unsustainable in light of uncontroverted documentary evidence produced by the defendant, including a registered charge and official search. Accordingly, the court held that the relevant...
Source-derived case information.
- Citation
- [2006] KEHC 2502 (KLR)
- Parties
- Plaintiff: Silvanus Kipraisi Tubei; Defendant: Kenya Commercial Finance Company Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 261 of 2003
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Plaint
- Outcome
- Application partially allowed; paragraph 7 and prayer (a) of the plaint struck out; remainder of plaint survives; costs to applicant.
- Legal Topics
- Striking Out Pleadings, Statutory Power of Sale, Mortgage and Charge Disputes, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Silvanus Kipraisi Tubei
Plaintiff
Kenya Commercial Finance Company Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Application to Strike Out Plaint
Legal Issues
- 1 Whether the plaint discloses a reasonable cause of action regarding the existence of a charge over Uasin Gishu Settlement Scheme/123.
- 2 Whether the allegation that no statutory notice of sale was served raises a triable issue.
- 3 Whether the plaint or any part of it is frivolous and vexatious and liable to be struck out.
Ratio Decidendi
The court found that the plaintiff's averment denying the existence of a charge over Uasin Gishu Settlement Scheme/123 was unsustainable in light of uncontroverted documentary evidence produced by the defendant, including a registered charge and official search. Accordingly, the court held that the relevant paragraph of the plaint and the corresponding prayer were frivolous and vexatious and struck them out. However, the court declined to strike out the entire plaint, noting that the allegation regarding non-service of statutory notice of sale raised a triable issue that had not yet been resolved. The applicant was awarded the costs of the application.
Court Disposition
Application partially allowed; paragraph 7 and prayer (a) of the plaint struck out; remainder of plaint survives; costs to applicant.
Orders
- Paragraph 7 of the plaint, in so far as it avers that the property was never charged to the defendant, is struck out.
- Prayer (a) in the plaint is struck out.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Case 261 of 2003
SILVANUS KIPRAISI TUBEI ………........................................…………………….PLAINTIFF
VERSUS
KENYA COMMERCIAL FINANCE COMPANY LTD………………………..DEFENDANT
RULING
By his application of the 3. 3.2006 the Applicant seeks to strike out the Plaint herein on the grounds that it is frivolous and vexatious.
The Plaint seeks the following orders:-
(a)A declaration that there is no charge created by the plaintiff in favour of the defendant in respect to Uasin Gishu Settlement Scheme/123
(b)An injunction restraining defendant, its servants, agents and or employees or otherwise howsoever from selling and or disposing off or alienating or otherwise howsoever from interfering with the plaintiff’s proprietary rights over Uasin Gishu Settlement Scheme/123.
(c)The defendant be ordered to render an account of the process of sale of property known as Eldoret Municipality 8/240
It is alleged in the Plaint that in respect of a charge over Eldoret Municipality 8/240 the Defendant has exercised its statutory power of sale in respect of monies which it is admitted the Plaintiff had defaulted in paying to the Defendant.
A further averment is that the Defendant has purported to exercise its statutory power of sale in respect of a property owned by the Plaintiff and known as Uasin Gishu Settlement Scheme/123. It is stated in paragraph 8 of the Plaint that attempt by the Defendant to exercise a legally non-existent power of sale not charged to it is unlawful.
Without prejudice the Plaintiff contends that no statutory notice of sale was served by the Defendant.
This allegation is, I presume without prejudice because the Plaintiff claims there is a charge over this property.
The Applicant herein refers to a copy of a charge in respect of the said property which is annexed to the supporting affidavit of Anthony Maino to this application. The copy of the charge shows that it has been stamped and has been executed and duly registered in the appropriate land registry. A copy of a search is also annexed showing that the charge is registered against the title to the property.
No evidence has been adduced by the Respondent to deny the evidence of the charge.
It is clear that the allegation in the Plaint that there is no charge over the property cannot be sustained and the allegation is clearly frivolous.
As a result I strike out paragraph 7 of the Plaint in so far as it avers that the property was never charged to the Defendant as well as prayer (a) in the Plaint.
I will not strike out the whole of the Plaint as there is an allegation that no statutory notice was served which is an issue, which has not yet been resolved.
The Applicant will have the costs of the application.
Dated and delivered at Nairobi this 25th day of May, 2006.
P. J. RANSLEY
JUDGE