[2000] KEHC 268 (KLR)
The court found that there exists a factual dispute as to whether the proceeds from the sale of the lorry under the hire purchase agreement were credited to the defendant's account. This constitutes a triable issue that merits consideration at trial. Accordingly, the application for summary judgment is dismissed to...
Source-derived case information.
- Citation
- [2000] KEHC 268 (KLR)
- Parties
- Plaintiff: Southern Credit Banking Corporation Ltd.; Defendant: Mutomo Hardware General Stores Ltd.
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 254 of 1999
- Procedural Posture
- Civil Suit / Ruling on Application for Summary Judgment
- Outcome
- Application for summary judgment dismissed. Costs in the cause.
- Legal Topics
- Hire Purchase Disputes, Contractual Liability, Creditor Debtor Relations
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Southern Credit Banking Corporation Ltd.
Plaintiff
Mutomo Hardware General Stores Ltd.
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Summary Judgment
Legal Issues
- 1 Whether the defendant has a reasonable defence that merits consideration by the court.
- 2 Whether there exists a triable issue of fact regarding the proceeds of sale of the lorry under the hire purchase agreement.
Ratio Decidendi
The court found that there exists a factual dispute as to whether the proceeds from the sale of the lorry under the hire purchase agreement were credited to the defendant's account. This constitutes a triable issue that merits consideration at trial. Accordingly, the application for summary judgment is dismissed to allow the defendant the opportunity to present its defence at a full hearing.
Court Disposition
Application for summary judgment dismissed. Costs in the cause.
Orders
- The application for summary judgment is dismissed.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
5 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA
AT MOMBASA CIVIL SUIT NO. 254 OF 1999SOUTHERN CREDIT BANKING CORPORATION LTD. …………………. PALTINIFF VERSUS MUTOMO HARDWARE GENERAL STORES LTD. ……………………. DEFENDANTR U L I N G There is no doubt that there is a claim for over 5 million shillings arising from a contract of Hire Purchase. The difference between the parties is on the amount due as the Defendant Claims the lorry the subject matter of the Hire purchase was sold but proceed never credited to their account while the Plaintiffs seek to prove otherwise. That is an issue of fact which may need to be resolved in evidence. As away of pleading, the defence has not ventilated much but at this stage the Respondent need only to show that he has a reasonable defence that merits court’s consideration. This is to be viewed against the background of the principle that whenever there is a triable issue, be it of law or facts Defendant ought to have liberty to be heard. The court also may give a conditional right to defence if there is a doubtful defence of a kind a shadowy\y defence. I have considered all this. I think I am persuaded to think there is issue of fact that need to go to trial. I dismiss the applicant.
Cost in the cause.
Dated this 14th Day of December, 2000.
A.I. HAYANGAJUDGE