[1985] KEHC 122 (KLR)
The court found that the defence filed by the defendants disclosed no reasonable defence to the plaintiff's claim and that there was a full admission of the plaintiff's claim for specific performance and damages by way of mesne profits, both in the defence and in the correspondence between the parties. The issues...
Source-derived case information.
- Citation
- [1985] KEHC 122 (KLR)
- Parties
- Plaintiff: Steel Wares Ltd; Defendant: Mwangi Kangethe; Defendant: 2nd to 8th Defendants
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1333 of 1980
- Procedural Posture
- Civil Case / Judgment
- Outcome
- judgment for plaintiff
- Legal Topics
- Summary Judgment, Specific Performance, Mesne Profits, Admissions in Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Steel Wares Ltd
Plaintiff
Mwangi Kangethe
Defendant
2nd to 8th Defendants
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the defence as filed discloses a reasonable defence to the plaintiff's claim.
- 2 Whether there is an admission of the plaintiff's claim for specific performance and damages by way of mesne profits.
- 3 Whether judgment should be entered for the plaintiff under order 6 rule 13 and order 12 rule 6 of the Civil Procedure Rules.
Ratio Decidendi
The court found that the defence filed by the defendants disclosed no reasonable defence to the plaintiff's claim and that there was a full admission of the plaintiff's claim for specific performance and damages by way of mesne profits, both in the defence and in the correspondence between the parties. The issues raised in the replying affidavit were not pleaded in the defence and were found to lack merit. The court held that the third party notice issued by the defendants against the 4th defendant did not affect the plaintiff's entitlement to judgment. Consequently, judgment was entered for the plaintiff for specific performance and damages for mesne profits at Kshs 9,000 per month from...
Court Disposition
judgment for plaintiff
Orders
- Judgment entered for the plaintiff for specific performance of the agreement as prayed in the plaint.
- Damages awarded for loss of mesne profits at Kshs 9,000 per month from August 15, 1979 until specific performance is obtained.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
Steel Wares Ltd v Mwangi Kangethe & 7 Others
High Court, at Nairobi September 23, 1985
Cockar J
Civil Case No 1333 of 1980
Advocates
Mr C S Joshi for plaintiff, - present
Mr. K J Kinyanjui for defendants –present
September 23, 1985, Cockar J delivered the following Judgment.
This is an application by way of notice of motion under order 12 rule 6 and order 6 rule 13 of the Civil Procedure Rules and the inherent jurisdiction of the court brought as a duty judge matter.
Judgment is sought under order 6 rule 13 (1) (a) on the grounds that the defence as filed does not disclose a reasonable defence and that ground Mr Joshi strictly refrained from referring to the affidavit and relied wholly on the pleadings filed, judgment is also sought under order 6 rule 13 (b) & (c) and under order 12 and rule 6 on admissions made in pleadings and in the correspondence between the advocates of the parties.
Submissions made by both the learned counsel have been recorded faithfully. I am fully mindful of all the submissions so made. I have also carefully perused the pleadings and the correspondence attached to the affidavit of M D Patel accompanying this application. I am satisfied that the defence as filed discloses no reasonable defence to the plaintiff ‘s claim. I am also satisfied that there is a full admission of plaintiff’s claim for specific performance and damages by way of mesne profits at Kshs 9,000 per month from August 15, 1979 onwards until the specific performance is obtained, both in the defence filed and in the correspondence attached to the said affidavit of M D Patel.
I must point out that such issues as relating to costs of the suit unstamped agreements of sale and fraud perpetuated by 4th defendant against the rent of the defendants raised in the replying affidavit of 3rd defendant are not matters raised in the defence. In any case there is no merit in any of the issues raised in the replying affidavit.
The seven defendants have their remedy against the 4th defendant against whom they took and 3rd party notice under order 1 rule 21, on July 3, 1980 but do not appear to have taken any further steps thereafter in that direction.
Sub rule (3) of order 1 rule 21 is clear and the said 3rd party notice on the proceedings that may follow it cannot operate so as to prejudice the rights of the plaintiffs against the rent of the defendants who have no defence whatsoever against the plaintiffs and against whom the plaintiffs are entitled to have judgement now.
The 4th defendant was also duly served and has neither entered appearance nor has he filed a defence. Mr Joshi sought judgment against all eight defendants jointly and severely which I now enter for specific performance of the agreement as prayed in prayer 9 (i) of the plaint. I also award damages for loss of mesne profits at the rate of Kshs 9,000 per month from August 15, 1979 up to the date the specific performance is obtained as per para 4 of the plaint.
Costs of the suit and of this application with interest are awarded to the plaintiffs against the defendants jointly and severally. Interest is awarded on damages at 12% per annum from the date of the filing of the suit till payment in full. On completion of the specific performance awarded above the balance of the purchase price less the decretal amount shall be paid to the defendants forthwith.