[2017] KEHC 8503 (KLR)
The court found that the defence filed by the defendants was a bare denial, lacking any specific or substantive response to the plaintiff's claims. The defence failed to address the material facts, such as the existence of the contract, the supply of goods, the execution of the guarantee, or the settlement of the...
Source-derived case information.
- Citation
- [2017] KEHC 8503 (KLR)
- Parties
- Plaintiff: Somochem Kenya Limited; Defendant: Grand Paints Limited; Defendant: Abdullah D. Rajab; Defendant: Hussein Abdullah Rajab; Defendant: Mahmud Rajab
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 489 of 2014
- Procedural Posture
- Civil Suit / Ruling on Application to Strike Out Defence
- Outcome
- Defence struck out; judgment entered for plaintiff as prayed in the plaint.
- Legal Topics
- Guarantee Liability, Summary Judgment, Striking Out Defence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Somochem Kenya Limited
Plaintiff
Grand Paints Limited
Defendant
Abdullah D. Rajab
Defendant
Hussein Abdullah Rajab
Defendant
Mahmud Rajab
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Strike Out Defence
Legal Issues
- 1 Whether the defence filed by the defendants raises any triable issues.
- 2 Whether the defence is frivolous, vexatious, or a sham and should be struck out.
- 3 Whether the plaintiff is entitled to judgment as prayed in the plaint.
Ratio Decidendi
The court found that the defence filed by the defendants was a bare denial, lacking any specific or substantive response to the plaintiff's claims. The defence failed to address the material facts, such as the existence of the contract, the supply of goods, the execution of the guarantee, or the settlement of the debt. Furthermore, the defence was internally inconsistent, simultaneously denying and admitting the existence of a continuing guarantee. The court held that such a defence is frivolous, vexatious, and unintelligible, and does not raise any triable issues. As a result, the court struck out the defence and entered judgment in favour of the plaintiff as prayed in the plaint.
Court Disposition
Defence struck out; judgment entered for plaintiff as prayed in the plaint.
Orders
- The defence dated 26th November 2014 is struck out.
- Judgment is entered in favour of the plaintiff as prayed in the plaint dated 30th October 2014.
Full Case Text
Judgment text and source record
44 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL AND TAX DIVISION
CIVIL SUIT NO. 489 OF 2014
SOMOCHEM KENYA LIMITED…….……….........…………………..PLAINTIFF
-VERSUS -
GRAND PAINTS LIMITED...……………….....………………1ST DEFENDANT
ABDULLAH D. RAJAB……………………..……….……….2ND DEFENDANT
HUSSEIN ABDULLAH RAJAB……………..……….………3RD DEFENDANT
MAHMUD RAJAB……………………………………………4TH DEFENDANT
RULING
1. The plaintiff has asked the court to strike out the Defence as it raises no triable issues, is a sham and is frivolous and vexatious. As far as the plaintiff was concerned, the Defence on record does not raise any issue which could require the case to proceed to trial.
2. In the Defence, it is indicated that the Defendant denies the contents of paragraphs 6, 7, 8,9,10 and 11 of the plaint.
3. Those paragraphs set out the basis of the plaintiff’s claim, which is premised, first, upon the request by GRAND PAINTS LIMITED, that the plaintiff should supply to it, goods on credit. The plaintiff said that it agreed to supply goods to the 1st Defendant.
4. The plaint states that the 2nd, 3rd and 4th defendants executed unconditional guarantees in favour of the plaintiff, as security for the debt which the 1st defendant owed, arising from the plaintiff’s supply of goods on credit.
5. The plaintiff not only filed a Witness Statement, which was then served upon the defendants, but also provided the following documents;
i) Guarantee dated 11th November 2013;
ii) Statement of Account;
iii) Demand letter to the 1st Defendant; and
iv) Demand letter to the Guarantors.
6. Notwithstanding that fact, the defence fails to give any reason why the defendants or any of them denied the contents of the plaint.
7. A bare denial, such as that tendered by the defendants does not give rise to any triable issues.
8. If the 1st defendant did not enter into a contract with the plaintiff, that could have been specifically pleaded.
9. Or if there was a contract, but either the plaintiff failed to supply goods to the 1st Defendant, or if the said defendant had already paid for the goods supplied, that should have been specifically pleaded.
10. Meanwhile, as regards the Guarantors, ABDULLAH D. RAJAB; HUSSEIN ABDULLAH RAJAB and MAHMUD RAJAB, they should have been explicit about the exact assertions that they were denying.
11. For instance, if they had not signed the Guarantee; or if the plaintiff did not supply goods to the 1st defendant; or if the 1st defendant settled all the bills for the goods supplied to it; those facts should have been specifically pleaded.
12. On the one hand, the defendant denies the Guarantee, but on the other hand, the Defence admits that the Guarantee was a continuing guarantee. It is not possible for a non-existent Guarantee to also be a continuing guarantee or any other kind of guarantee.
13. By putting forward such inconsistent pleadings in the Defence, the defendants are deemed to be trifling with the court. Such a line of Defence is said to be frivolous.
14. And because the defence put forward is lacking in foundation, there is no way it could be sustained.
15. The foundation of a defence is to be found in the reasons proffered to demonstrate that it has a basis.
16. A defence which is lacking in foundation cannot be arguable, and therefore the only function it could perform if allowed to remain on the record, is to vex the plaintiff.
17. The Defence herein is vexatious. Apart from that, it is also evasive and unintelligible.
18. I have no hesitation in holding that the defence is so weak that it cannot be given a lease of life, even if the defendants attempted to amend it.
19. Perhaps the defendants also reached a similar conclusion, because they found no reason to come to court, to fight-off the plaintiff’s application to strike out the Defence.
20. In the circumstances, I strike out the Defence dated 26th November 2014, and I grant Judgement in favour of the plaintiff as prayed in the Plaint dated 30th October 2014.
21. The costs of the application dated 7th July 2015 are awarded to the plaintiff.
DATED, SIGNED and DELIVERED at NAIROBI this 16th dayof February 2017.
FRED A. OCHIENG
JUDGE
Ruling read in open court in the presence of
Kahura for Ogunde for the Plaintiff
No appearance for the 1st Defendant
No appearance for the 2nd Defendant
Collins Odhiambo – Court clerk.