[2003] KEHC 608 (KLR)
The court found that the Plaintiff had established his claim by providing evidence of payment for a motor vehicle that was not supplied by the Defendant. The Defendant failed to file a Replying Affidavit or provide any substantive defence, relying only on a general denial. The Defendant's correspondence did not...
Source-derived case information.
- Citation
- [2003] KEHC 608 (KLR)
- Parties
- Plaintiff: Thomas Nyariki; Defendant: Major John Kipchumba t/a Hilltop Motors
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- ? 75 of 2002
- Procedural Posture
- Civil Case / Summary Judgment Application
- Outcome
- application allowed; summary judgment entered for the Plaintiff.
- Legal Topics
- Summary Judgment, Contract Enforcement, Sale of Goods
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Thomas Nyariki
Plaintiff
Major John Kipchumba t/a Hilltop Motors
Defendant
Procedural Posture
Civil Case / Summary Judgment Application
Legal Issues
- 1 Whether the Plaintiff is entitled to summary judgment as prayed in the Plaint.
- 2 Whether the Defendant has raised a bona fide defence warranting leave to defend the suit.
Ratio Decidendi
The court found that the Plaintiff had established his claim by providing evidence of payment for a motor vehicle that was not supplied by the Defendant. The Defendant failed to file a Replying Affidavit or provide any substantive defence, relying only on a general denial. The Defendant's correspondence did not dispute the debt but instead sought indulgence to deliver the vehicle, further supporting the Plaintiff's case. The court held that the Defendant's defence was a sham and not bona fide, as it did not raise any triable issue or contradict the Plaintiff's evidence. Therefore, the Plaintiff was entitled to summary judgment as prayed.
Court Disposition
application allowed; summary judgment entered for the Plaintiff.
Orders
- Judgment entered for the Plaintiff for Kshs. 681,250 together with interest and costs.
- Plaintiff awarded the costs of the application.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU CIVIL CASE NO. 75 OF 2002
THOMAS NYARIKI …………………………………………….PLAINTIFF VERSUS MAJOR JOHN KIPCHUMBA T/A HILLTOP MOTORS ……………………………………..DEFENDANT
RULING
This is an application under Order XXXV Rule 1 of the Civil Procedure Rules. In it, the Plaintiff seeks that Summary Judgment be entered in his favour as prayed in the Plaint.
In his Plaint dated March 26, 2002, the Plaintiff sought Judgment for Kshs. 681,250/= among others. The Defendant entered appearance and filed defence in which he denied the whole of the Plaintiff’s claim. In his Affidavit in support of the application under consideration, the Plaintiff annexed a receipt for payment made to the Defendant for a motor vehicle which the Defendant was to supply to the Plaintiff.
The Defendant did not file a Replying Affidavit to controvert the Plaintiff’s version of events. In his defence, the Defendant makes a general denial. The Defendant does not say why the Plaintiff paid him money and whether he fulfilled the purpose of that payment. In applications of this nature, it is the Responsibility of the Defendant to show that he should have leave to defend the action (see Order XXXV Rule 2(1) of the Rules). He has not done so. His defence and Grounds of Opposition do not counter the evidence placed before me by the Plaintiff’s affidavit.
In one of the annextures to that affidavit, the Defendant wrote to the Plaintiff’s Advocates in response to those Advocates demand letter in which he did not dispute the debt claimed and sought indulgence to enable him deliver the motor vehicle, the subject of the parties’ transaction, to the Plaintiff. His defence is, therefore, a sham and not bona fide as it is not consistent with the material availed to this Court. I have perused the case of Commercial Bank of Africa Ltd. v. P. C. J. Haria T/a Krishna Cosmetics MILIMANI HCCC 334 OF 2001 and I agree with what was said there by my learned Brother the Honourable Mr. Justice Onyango Otieno.
I, therefore, allow the Plaintiff’s application dated April 30, 1999 and enter Judgment in his favour for Kshs. 681,250/= together with interest and costs. He shall also have the costs of this application.
Dated and Delivered at Nakuru this 29th day of July, 2003.
ALNASHIR VISRAM
JUDGE