[2012] KEHC 484 (KLR)
The court held that since the defendants had filed their defence prior to the coming into force of the new Civil Procedure Rules, and as it was practicable to apply the new rules to the present proceedings, the application for summary judgment could not be entertained. The new rules govern the procedure, and under...
Source-derived case information.
- Citation
- [2012] KEHC 484 (KLR)
- Parties
- Plaintiff: Southern Credit Banking Corporation Ltd; Defendant: Solomon W. Karanja; Defendant: Olive W. Karanja; Defendant: Ian Karanja; Defendant: Olesolian Enterprises Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 218 of 2010
- Procedural Posture
- Civil Suit / Ruling on Summary Judgment Application
- Outcome
- application struck out
- Judges
- CM Njagi, GV Odunga
- Legal Topics
- Summary Judgment, Application of New Rules, Procedural Striking Out
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Southern Credit Banking Corporation Ltd
Plaintiff
Solomon W. Karanja
Defendant
Olive W. Karanja
Defendant
Ian Karanja
Defendant
Olesolian Enterprises Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Summary Judgment Application
Legal Issues
- 1 Whether the application for summary judgment is tenable under the new Civil Procedure Rules.
- 2 Whether the defence filed by the defendants precludes the grant of summary judgment.
- 3 Whether the new Civil Procedure Rules apply to pending proceedings.
Ratio Decidendi
The court held that since the defendants had filed their defence prior to the coming into force of the new Civil Procedure Rules, and as it was practicable to apply the new rules to the present proceedings, the application for summary judgment could not be entertained. The new rules govern the procedure, and under those rules, once a defence is filed, summary judgment is not available. Consequently, the application was struck out as it was not tenable in law under the prevailing procedural framework.
Court Disposition
application struck out
Orders
- The application for summary judgment is struck out.
- There shall be no orders as to costs.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
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SOUTHERN CREDIT BANKING CORPORATION LTD…...............PLAINTIFF
VERSUS
SOLOMON W. KARANJA………………………………...…1ST DEFENDANT
OLIVE W. KARANJA……………………………………..….2ND DEFENDANT
IAN KARANJA……………………………………………….3RD DEFENDANT
OLESOLIAN ENTERPRISES LIMITED……......……………4TH DEFENDANT
RULING
This is an application for Summary Judgment. It is brought by a Notice of Motion dated 12th October, 2010 and taken out under Order XXXV Rules (a)(a) and 2 of the (Old) Civil Procedure Rules, and Sections 14 and 1B of the Civil Procedure Act.
By the application, the Plaintiff/Applicant seeks an order for Summary Judgment for the Plaintiff against the Defendants jointly and severally. In the alternative, the Applicant prays that the Respondents be ordered to deposit the sum of Kshs. 43,830,053. 40 in a joint interest earning account in the names of counsel for both sides.
On 2nd February, 2011 the court directed that the parties herein do file their respective submissions. The Applicant filed its submissions on 11th February, 2011 and the Respondents followed suit on 25th February, 2011. As fate would have it, the new Civil Procedure Rules had come into force in December, 2010. Order 54 Rule 2 thereof provides that-
“In all proceedings pending whether preparatory or incidental to, or consequential upon any proceedings in court at the time of the coming into force of these rules, the provisions of these rules shall thereafter apply but without prejudice to the validity of anything previously done;
Provided that:
If, and in so far as it is impracticable in any such proceedings to apply the provisions of these Rules, the practice and procedure heretofore obtaining shall be followed…”
The new rules now apply to this matter because it is practicable to do so. Since the Defendants had filed their defence as early as May, 2010, the matter is not subject to an application for summary judgment.
This application is accordingly struck out with no orders as to costs.
L. NJAGI
JUDGE
DATEDand DELIVEREDat NAIROBIthis 7th day of November, 2012.
ODUNGA
JUDGE