[2006] KEHC 804 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)

Civil Case 514 of 2003

STEPHEN KANYAGIA MWANGI………………….....………………1ST PLAINTIFF

PATRICK GATHONDU GICHUKI………………….....……………. 2ND PLAINTIFF

VERSUS

MACKENZIE MUTISO SILA…………………………..………….1ST DEFENDANT

RULING

By a plaint dated 29th May 2003 and amended on 28th October 2004 the plaintiff sought judgment against the Defendants in the following terms:

(A) Against the 1st Defendant:

(i) A declaration that the 2nd plaintiff is entitled to vacant possession of the suit premises being LR NO. NAIROBI/BLOCK 32/813 and an order that the 1st defendant do deliver up and/or surrender the suit

premises to the 2nd plaintiff.

(ii) That the 1st Defendant do pay to the 2nd plaintiff mesne

profits at such rate as may be determined by the court from 15th March 2003 until the 1st Defendant complies with the order being sought in (i) herein above.

(B) Against the 2nd Defendant in the alternative to “A” herein above.

(i) Refund of the purchase price herein with interest thereon at the court rates, or at such rates as the court may deem to be expedient.

(C) Against both Defendants:

(i) Costs of the suit

(ii) Any other relief or remedy the court may deem to be just, in the circumstances of the case.

On 4th July 2005 by way of Notice of Motion brought under Order VI Rule 13 (1) (b) (c) and (d) of the Civil Procedure Rules and Section 3A of the Procedure Act sought orders:

(1) That the Defence filed by the 1st Defendant be struck out for:-

(a) being scandalous, frivolous and vexatious,

(b) being calculated to prejudice or delay the fair trial of the suit and/or

(c) being otherwise an abuse of the process of the court.

(2) That there be judgment against the 1st Defendant herein as prayed in the plaint.

(i) That the 2nd Plaintiff is the registered proprietor of the suit property herein having acquired the same as an innocent purchaser for valuable consideration pursuant to a normal conveyancing Transaction wherein title to the property lawfully passed to him, from the previous registered proprietor, and

(ii) That the 1st Defendant has no right to continue occupying the said property, as he is neither the 2nd plaintiff’s tenant nor the proprietor of the said property.

The application is also supported by an affidavit sworn by the first plaintiff in which he avers that he is an innocent purchaser without notice and has secured registration of the suit land in his name. The first defendant raises issues touching on resjudicate as the ownership of the suit property was settled in HCCC NO. 1595OF 1992in which judgment was delivered on 3rd December 1999 and further at the time the suit property is alleged to have been transferred to the plaintiff there existed a caveat against title by the defendant.

On an application for striking out a defence and enter judgment the Judge is required to exercise extreme caution and to exercise his summary powers in clear and obvious cases. This was so stated by Madan JA (as he then was) in DT DOBIE CO. LTD VS. MUCHINA & ANOTHER CIVIL APPEAL NO. 37 OF 1978.

If an application for summary judgment the defendant advances a defence which is reasonable or plausible and bona fide, the Judge must allow him unconditional leave to defend. CITY PRINTING WORKS (K) LTD VS. BAILEY [1977] KLR 85. Summary Judgment is a draconian remedy. It drives a party away from a seat of judgment and it is not encouraged by the court except in very clear cases.

I am satisfied that the defence by the first Defendant raises triable issues. I therefore dismiss the application and grant the

Defendant unconditional leave defend.

Costs to the Respondent.

Dated and delivered at Nairobi this 2nd day of October 2006.

J.L.A. OSIEMO

JUDGE