[2005] KEHC 694 (KLR)
The court found that the plaint, when read as a whole, clearly disclosed a reasonable cause of action based on an alleged breach of a building contract by the defendant. The defendant's assertion that the plaintiff failed to traverse certain paragraphs of the defence was rejected, as the court held that the...
Source-derived case information.
- Citation
- [2005] KEHC 694 (KLR)
- Parties
- Plaintiff: The Devcon Group Limited; Defendant: University of Nairobi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 125 of 2005
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Plaint
- Outcome
- application dismissed with costs to the plaintiff
- Judges
- DW Mbuteti
- Legal Topics
- Striking Out Pleadings, Reasonable Cause of Action, Abuse of Process, Building Contract Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
The Devcon Group Limited
Plaintiff
University of Nairobi
Defendant
Procedural Posture
Civil Case / Ruling on Application to Strike Out Plaint
Legal Issues
- 1 Whether the plaint discloses a reasonable cause of action.
- 2 Whether failure to traverse paragraphs 9 and 10 of the defence amounts to admission by the plaintiff.
- 3 Whether the plaint is an abuse of the process of the court.
Ratio Decidendi
The court found that the plaint, when read as a whole, clearly disclosed a reasonable cause of action based on an alleged breach of a building contract by the defendant. The defendant's assertion that the plaintiff failed to traverse certain paragraphs of the defence was rejected, as the court held that the plaintiff had already joined issue on the material facts in dispute. There was no evidence presented to show that the plaint was an abuse of the court process. Consequently, the application to strike out the plaint lacked merit and was dismissed with costs to the plaintiff.
Court Disposition
application dismissed with costs to the plaintiff
Orders
- The application to strike out the plaint is refused.
- Costs awarded to the plaintiff.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL DIVISION, MILIMANI
Civil Case 125 of 2005
THE DEVCON GROUP LIMITED………….….…....PLAINTIFF/RESPONDENT
VERSUS
UNIVERSITY OF NAIROBI……………..…………..DEFENDANT/APPLICANT
R U L I N G
This is an application (by chamber summons dated 5th August, 2005) in which the Defendant, UNIVERSITY OF NAIROBI, seeks orders that the plaint be struck out and “judgment be entered accordingly”. I don’t know what judgment the Defendant wants entered since there is no counter-claim. In the circumstances of this
case what would follow an order striking out the plaint would be an order dismissing the suit. See sub-rule (1) of Rule 13 of Order 6 of the Civil Procedure Rules. The application is brought under paragraphs (a) & (d) of the said sub-rule which give this court power to order any pleading to be struck out or amended on the grounds, respectively, that it discloses no reasonable cause of action or defence or that it is otherwise an abuse of the process of the court.
The grounds of the application are stated to be:-
(a) that the plaint does not disclose any reasonable cause of action;
(b) that paragraphs (9) & (10) of the defence have not been traversed and are thus deemed admitted by the Plaintiff;
(c) that the plaint in the face of the said defence is an abuse of the process of the court; and
(d) that it is only fair and just that the suit be struck out.
The application is opposed by the Plaintiff upon the grounds of opposition dated 17th October, 2005. Those grounds, though thirteen (13) in number, amount to the following:-
(i) that the application is misconceived and incompetent or otherwise lacks in merit;
(ii) that issues raised in paragraphs 9 and 10 of the defence are properly addressed in paragraph 12 of the plaint and did not therefore require any rebuttal; and
(iii) that the plaint discloses a reasonable cause of action and is not an abuse of the process of the court.
I have considered the submissions of the learned counsels. The Plaintiff’s case as pleaded is based upon a building contract dated 20th November, 2003 whose total value was Kshs.57,746,119/=. The Plaintiff pleads that the Defendant is in breach of various clauses of that contract and claims Kshs.35,988,000/= as money owed to it under the contract. In paragraphs 9 and 10 of the defence it is pleaded, in effect, that it was the Plaintiff who was in breach of the contract. The Plaintiff’s claim is therefore denied. As the Plaintiff had already pleaded that it was the Defendant who was in breach, the Defendant, by pleading that it was the Plaintiff who was in breach thereby joined issue with the Plaintiff regarding that particular aspect of the case. I so hold. It was thus not necessary for the Plaintiff to specifically traverse paragraphs 9 and 10 of the defence.
Looking at the entire plaint a reasonable cause of action is clearly disclosed. In response to the plaint the Defendant filed a defence of fourteen (14) paragraphs. Nothing has been placed before the court as would lead to a finding that the plaint is an abuse of the process of the court. This application lacks merit. It is hereby refused with costs to the Plaintiff. Orders accordingly.
DATED AND SIGNED AT NAIROBI THIS 10TH DAY OF NOVEMBER, 2005.
H.P.G. WAWERU
JUDGE
DELIVERED THIS……………….DAY OF NOVEMBER, 2005.