[2018] KEHC 9856 (KLR)
The court found that the defendants' statement of defence raised triable issues, including whether the 1st defendant was properly joined to the proceedings, whether the 1st defendant guaranteed any documents as claimed by the plaintiff, and whether the defendants owe the plaintiff any monies. Since these issues...
Source-derived case information.
- Citation
- [2018] KEHC 9856 (KLR)
- Parties
- Plaintiff: Star Tours and Travel Limited; Defendant: Kennedy Gichuha Chege; Defendant: Debonair Travel Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 166 of 2018
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Defence and for Summary Judgment
- Outcome
- application dismissed with costs to the defendants
- Judges
- JK Sergon
- Legal Topics
- Striking Out of Pleadings, Summary Judgment, Triable Issues, Abuse of Court Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Star Tours and Travel Limited
Plaintiff
Kennedy Gichuha Chege
Defendant
Debonair Travel Limited
Defendant
Procedural Posture
Civil Case / Ruling on Application to Strike Out Defence and for Summary Judgment
Legal Issues
- 1 Whether the defendants' statement of defence is scandalous, frivolous, vexatious, or an abuse of the court process.
- 2 Whether the defence raises any triable issues warranting a full trial.
- 3 Whether the plaintiff is entitled to summary judgment as prayed.
Ratio Decidendi
The court found that the defendants' statement of defence raised triable issues, including whether the 1st defendant was properly joined to the proceedings, whether the 1st defendant guaranteed any documents as claimed by the plaintiff, and whether the defendants owe the plaintiff any monies. Since these issues require determination at a full trial, the court held that it would be prejudicial to deny the defendants the opportunity to defend the suit. Consequently, the application to strike out the defence and for summary judgment was dismissed for lack of merit.
Court Disposition
application dismissed with costs to the defendants
Orders
- The motion dated 23rd May, 2018 is dismissed with costs to the defendants.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CIVIL CASE NO. 166 OF 2017
STAR TOURS AND TRAVEL LIMITED……PLAINTIFF/APPLICANT
VERSUS
KENNEDY GICHUHA CHEGE…….1ST DEFENDANT/RESPONDENT
DEBONAIR TRAVEL LIMITED…..2ND DEFENDANT/RESPONDENT
RULING
1. The Plaintiff/Applicant herein took out the motion dated 23rd May, 2018 under Section 3A of the Civil Procedure Act, and Order 2, Rule 15 (1) (b) and (d) of the Civil Procedure Rules, seeking the following orders:
i) THAT the Statement of Defence dated 10th October, 2017 be struck out.
ii) THAT judgment be entered in favour of the Plaintiff/Applicant as prayed in the plaint.
iii) THAT costs of the application and suit be awarded to the Plaintiff/Applicant together with interest at court rates.
2. The aforesaid motion is supported by the grounds set out on the face thereof and the affidavit of Joan G. Ngugisworn on 23rd May, 2018. The defendants opposed the motion by filing the replying affidavit of Kennedy Gichuha Chege on 24th July, 2018.
3. I have considered the grounds set out on the face of the motion and the facts deponed in the affidavits filed in support and against the application plus the respective submissions by the parties. The substantive prayers sought in the motion are that of striking out the joint statement of defense and for entry of judgment.
4. It is the plaintiff’s argument that the defendants defence is scandalous, frivolous and vexatious and that it is intended to prejudice, embarrass or delay the fair trial of the suit and that it is an abuse of the court process.
5. The Plaintiff contended that the defence does not raise any triable issues and was of the view that the same is a mere denial.
6. The Defendants on their part maintained that their defence raises triable issues and hence, they stand to suffer prejudice if the same is struck out.
7. The court has considered the statement of defence and finds that the same raises triable issues. First is whether or not the 1st Defendant was wrongly enjoined to these proceedings. Secondly, whether or not the 1st Defendant guaranteed any documents as is claimed by the Plaintiff; and thirdly whether or not the Defendants owe the Plaintiff any monies.
8. It is not in dispute that the defence has been appropriately filed. It would be in the utmost interest of justice to grant the Defendants the opportunity of defending the suit. The court is convinced that to deny them such a chance would in effect amount to prejudice.
9. The Plaintiff similarly sought to have judgment entered in its favour. The prayer is dependent on whether or not the defence stands and since the court has declined to strike out the defence, then the prayer for summary judgment fails.
10. The upshot is that the motion dated 23rd May, 2018 lacks merit, it is dismissed with costs to the Defendant.
Dated, Signed and Delivered at Nairobi this 7th day of December, 2018.
J.K. SERGON
JUDGE
In the presence of:
……………………………. for the Plaintiff/Applicant
……………………………. for the 1st and 2nd Defendants/Respondents