[2009] KEHC 1591 (KLR)
The court found that the defendants' statement of defence did not disclose any triable issue and was a sham. The evidence, including the certificate for work done and the acknowledgment of debt by the 3rd defendant, established the existence of the debt. The court held that the defendants' arguments were...
Source-derived case information.
- Citation
- [2009] KEHC 1591 (KLR)
- Parties
- Plaintiff: Terrazo Enterprises Limited; Defendant: Pavement Club “N” Café; Defendant: Blue Elephant Limited; Defendant: Shailesh Patel
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 568 of 2008
- Procedural Posture
- Civil Case / Ruling on Application for Summary Judgment and Striking Out Defence
- Outcome
- application allowed; summary judgment entered for plaintiff; defence struck out
- Legal Topics
- Summary Judgment, Striking Out Pleadings, Contractual Debt, Triable Issues
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Terrazo Enterprises Limited
Plaintiff
Pavement Club “N” Café
Defendant
Blue Elephant Limited
Defendant
Shailesh Patel
Defendant
Procedural Posture
Civil Case / Ruling on Application for Summary Judgment and Striking Out Defence
Legal Issues
- 1 Whether the defendants' statement of defence discloses any triable issues.
- 2 Whether the plaintiff is entitled to summary judgment for the contractual debt claimed.
- 3 Whether the defence should be struck out as a sham.
Ratio Decidendi
The court found that the defendants' statement of defence did not disclose any triable issue and was a sham. The evidence, including the certificate for work done and the acknowledgment of debt by the 3rd defendant, established the existence of the debt. The court held that the defendants' arguments were insufficient to shift liability or warrant a trial, and that the defence was intended to delay the matter to the plaintiff's prejudice. Accordingly, the court struck out the defence and entered summary judgment for the plaintiff as prayed in the plaint, with interest and costs.
Court Disposition
application allowed; summary judgment entered for plaintiff; defence struck out
Orders
- The defendants' statement of defence is struck out.
- Judgment is entered for the plaintiff as prayed in the plaint for Kshs.16,598,988 with interest at court rates.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Case 568 of 2008
TERRAZO ENTERPRISES LIMITED ……..……..…….. PLAINTIFF
VERSUS
PAVEMENT CLUB “N” CAFÉ ……………………... 1ST DEFENDANT
BLUE ELEPHANT LIMITED ……………………..…. 2ND DEFENDANT
SHAILESH PATEL …………….……………………... 3RD DEFENDANT
R U L I N G
Application dated 1/4/2009 by Notice of Motion brought under Order XXXV Rule 1, Civil Procedure Code, Order L Rule 1, Civil Procedure Code, Order VI Rule 13 (1) (b), (c), (d) Civil Procedure Code seeking to strike out the defendant’s/respondent’s statement of defence dated 17/11/2008 and that the court do enter summary judgment in the sum of Kshs.16,598,988/= against the defendant as prayed in the plaint on the grounds set out in the application.
The application is supported by the affidavit sworn by Gopal Patel which shows that he is a director of the plaintiff. The plaintiff contracted to carry out alterations and extensions to the defendants business premises. Certificate was issued for the work done in the sum of Kshs.30,139,188/= as shown in exhibited “GP1”. Payment was made totaling to Kshs.12,550,000/= leaving a balance of Kshs.17,589,188/=. The proposal as to how to pay balance was made as shown in exhibit “GP 3 (a) and (d)”. The proposals were rejected. The 3rd defendant has acknowledged the debt as shown in exhibit “GP5”.
In the replying affidavit the 3rd defendant swears that the statement raises triable issues mainly whether a suit against the party that no longer exists and lie, whether the amounts disputed can only be established by way of cross-examination, whether the plaintiff has a reasonable cause of action and particulars of work done are not shown.
The counsel for defendant did not file any submissions as he had agreed and moreover did not attend court on the date fixed for submissions. The plaintiff’s counsel therefore submitted that no triable issues are disclosed in the joint statement of defence. Relying on the case of Gobil vs. Wamai [1983] KLR 486 quoted in Charles Githinji Muturi vs. Julius Nderitu Kahara [2008] where the court observed that the burden in on the defendants to satisfy the court that he is entitled to leave to defend the suit.
They must show that they have good ground of defence. I have perused the exhibits produced and exchanged between the parties. It is clear there is no defence as to the existence of the debt. The defendants intend to delay the matter and this is to the prejudice of the plaintiff. I find no triable issue which can shift the liability to pay the plaintiff’s claim from the defendants. I find the statement of defence to be a sham and I strike it out.
Consequently, the application is allowed and judgment is entered for the plaintiff as prayed in the plaint with interest at court rates. The costs are awarded to the plaintiff.
Orders accordingly.
DATED, SIGNED and DELIVERED at Nairobi this 16th day of October 2009.
JOYCE N. KHAMINWA
JUDGE