[2001] KEHC 495 (KLR)
The court found that the defendant had implicitly admitted some indebtedness to the plaintiff and failed to provide evidence of payment or a credible defence to the plaintiff's claim. The defendant's attempt to introduce new arguments not pleaded in the defence, such as issues of dead stock, was disregarded as...
Source-derived case information.
- Citation
- [2001] KEHC 495 (KLR)
- Parties
- Plaintiff: Sky Pharmacy Limited; Defendant: Lynx Pharmacy Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 470 of ??
- Procedural Posture
- Summary Judgment Application / Ruling
- Outcome
- application allowed; summary judgment entered for plaintiff
- Legal Topics
- Summary Judgment, Debt Recovery, Goods Supplied, Pleadings and Admissions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sky Pharmacy Limited
Plaintiff
Lynx Pharmacy Limited
Defendant
Procedural Posture
Summary Judgment Application / Ruling
Legal Issues
- 1 Whether the plaintiff is entitled to summary judgment for the amount claimed based on the pleadings and evidence presented.
- 2 Whether the defendant has raised a triable issue or bona fide defence to warrant refusal of summary judgment.
Ratio Decidendi
The court found that the defendant had implicitly admitted some indebtedness to the plaintiff and failed to provide evidence of payment or a credible defence to the plaintiff's claim. The defendant's attempt to introduce new arguments not pleaded in the defence, such as issues of dead stock, was disregarded as irrelevant. The plaintiff's evidence, including the statement of account, was unchallenged and established the debt. Accordingly, the court held that the defendant had no answer to the plaintiff's application and summary judgment was warranted for the amount claimed.
Court Disposition
application allowed; summary judgment entered for plaintiff
Orders
- Judgment is entered in favour of the plaintiff against the defendant for Shs.749,481.50 with costs and interest at court rates.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL CASE NO. 470 OF 2000
SKY PHARMACY LIMITED …………………………….... PLAINTIFF
VERSUS
LYNX PHARMACY LIMITED …………………………. DEFENDANT
RULING
This is an application under O. XXXV Rule 1, O. L Rules 1 and 3 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act for summary judgment to be entered against the defendant for Shs.749,481. 50 plus costs and interest at 20% from 31. 3.1999 until payment in full. The application is based on the following grounds:-
a) That the Defendant is truly indebted to the Plaintiff for the sum claimed in respect of goods supplied to the Defendant at their request.
b) That the Defendant has indirectly acknowledged the debt in the Defence, while at the same time raising a general mere denial to the claim, and at the same time claiming they had been allowed by the Plaintiff to pay the same debt piecemeal.
The plaint on which the application is based avers in paragraph 3 that the plaintiff’s claim against the defendant is for Shs.749,481. 50 in respect of goods sold to the defendant at Nairobi in or about 1999 at the request of and instance of the defendant. In the defence the defendant implicitly admits part of the plaintiff claim by stating:-
“The defendant avers that any indebtedness to the plaintiff has significantly been met and as at the date of filing the suit, the amount owed by the defendant to the plaintiff had substantially been settled and could not be the amount claimed.”
My understanding of the above averment is that the defendant is not wholly and in total denying the plaintiff’s claim; it admits that there was a sum owing but that a substantial part was settled. This means that a portion of the claim remains outstanding. As to how much, the plaintiff has tendered evidence which has not been seriously challenged (see the statement of account annexed to Mr. Ruparelia’s affidavit sworn on 8. 8.2000 in support of this application) which shows that as at 18. 07. 2000, the defendant owed the plaintiff Shs.710,000/=. Given the defendant’s admission of some indebtedness to the plaintiff and the plaintiff’s establishment by cogent evidence that such debt was in the tune of Shs.710,000/=, the defendant is, on an application such as this obliged to show what sums, if any, he has paid towards the reduction of the debt (see Magunga General Stores Vs. Pepco Distributors Limited (1987) 2 KAR 89 at p. 90). Instead of doing so the defendant has sought through a replying affidavit sworn by Dr. Wahu Kereithi, a director of the defendant, to introduce new and irrelevant arguments which are not to be found in the defence, such as allegations of dead stock and return of such dead stock. Such averments and allegations are alien to the defence and must be ignored. Without them the defendant has no answer to the plaintiff’s application.
In the event the application succeeds and judgment is entered in favour of the plaintiff against the defendant for Shs.749,481. 50 with costs and interest at court rates.
Dated at Nairobi this 19th day of January, 2001.
T. MBALUTO
JUDGE