[2005] KEHC 2162 (KLR)
The court found that the plaintiff had established its claim for the sum of Kshs 622,000/- supplied to the 1st defendant, supported by documentary evidence including invoices, delivery notes, and a written admission of debt. The 2nd and 3rd defendants had executed a guarantee for the 1st defendant's indebtedness....
Source-derived case information.
- Citation
- [2005] KEHC 2162 (KLR)
- Parties
- Plaintiff: Triton Petroleum Limited; Defendant: Sekta Agencies Limited; Defendant: Rukas Gikandi; Defendant: David Karanja
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 829 of 2002
- Procedural Posture
- Summary Judgment Application / Ruling on Summary Judgment Application
- Outcome
- summary judgment entered for the plaintiff against all defendants
- Legal Topics
- Summary Judgment, Liquidated Claims, Guarantee Liability, Credit Transactions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Triton Petroleum Limited
Plaintiff
Sekta Agencies Limited
Defendant
Rukas Gikandi
Defendant
David Karanja
Defendant
Procedural Posture
Summary Judgment Application / Ruling on Summary Judgment Application
Legal Issues
- 1 Whether the plaintiff is entitled to summary judgment against the defendants for the liquidated sum claimed.
- 2 Whether the defendants' defence raises any bona fide triable issues to warrant a trial.
- 3 Whether the 2nd and 3rd defendants are liable as guarantors for the 1st defendant's debt.
Ratio Decidendi
The court found that the plaintiff had established its claim for the sum of Kshs 622,000/- supplied to the 1st defendant, supported by documentary evidence including invoices, delivery notes, and a written admission of debt. The 2nd and 3rd defendants had executed a guarantee for the 1st defendant's indebtedness. The defendants' defence was a bare denial and did not raise any triable issues. No affidavit in opposition was filed, and the defendants' counsel did not attend the hearing. Applying the principles governing summary judgment, the court held that there was no real prospect of the defendants successfully defending the claim. Accordingly, summary judgment was entered for the...
Court Disposition
summary judgment entered for the plaintiff against all defendants
Orders
- Judgment for the plaintiff against the 1st, 2nd and 3rd defendants for Kshs 622,000/- with interest.
- Costs of the suit awarded to the plaintiff.
Full Case Text
Judgment text and source record
32 paragraphs
Civil Practice and Procedure
· Summary judgment application under order 35 Rules 1 and 5
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI COMMERCIAL DIVISION, MILIMANI CIVIL CASE NO. 829 OF 2002
TRITON PETROLEUM LIMITED ……….......…………………….…PLAINTIFF
VERSUS
SEKTA AGENCIES LIMITED ………………………………….1ST DEFENDANT
RUKAS GIKANDI ……………………………………...……….2ND DEFENDANT
DAVID KARANJA …………………….………………….……3RD DEFENDANT
R U L I N G
The plaintiff has moved this court by Notice of Motion brought under Order 12 rule 6 and Order 35 Rules 1 and 5 of the Civil Procedure Rules.
The plaintiff seeks summary judgment to be entered against the defendants as prayed in the plaint.
The application is based on the grounds that: -
· The defendants’ defence is a bare denial and raises no triable issues;
· The defendants are justly and truly indebted to the plaintiff for goods supplied and services rendered;
· The defendants defence is merely calculated to delay justice in this case;
· The 1st defendant has admitted the plaintiff’s claim
The plaintiff deals in importation and distribution of petroleum products. At the 1st defendant’s request the plaintiff supplied the 1st defendant with petroleum products on credit for the value of kshs 622, 000/-.
The 2nd and 3rd defendants by a guarantee dated 9th October 2001 guaranteed the 1st defendant’s indebtedness to the plaintiff.
I confirm having noted annexed to the supporting affidavit credit application form, local purchase order, delivery note, invoices and statement showing that the petroleum products were supplied to the 1st defendant for kshs 622, 000/-. I have also noted annexed to that affidavit the 1st defendant’s admission of the debt and therein proposing to pay that debt at an interest of 23% per annum.
I have perused the defendant’s defences and I am of the view that there is no real prospect of successfully defending the plaintiff’s claim and accordingly there is no reason why the plaintiff’s claim should go for trial. The defendants did not file any affidavit in opposition hereof. The plaintiff relied on the case of HCCC (Milimani) NO. 1186 of 2000 NATIONAL INDUSTRIAL CREDIT BANK LTD V RAPHAEL OBONYO OKELLO and particularly the following passage: -
“It is well settled that the procedure of summary judgment is to be resorted to in respect of liquidated demands only where it is plain and obvious that the defendant is truly and justly indebted to the plaintiff and there is no bona fide triable issues raised by the proposed defence or the defence already filed.”
The defendant’s counsel even though served with a hearing notice did not attend court and indeed the plaintiff hereof has proved on a balance of probability that the defendants are justly and truly indebted to it.
The court therefore enters judgment in the following terms.
(1) Judgment for the plaintiff against the 1st, 2nd and 3rd defendants for kshs 622, 000/- with interest thereof.
(2) Costs of the suit are awarded to the plaintiff.
Dated and delivered at Nairobi this 15th day of April 2005.
MARY KASANGO
JUDGE
Read and delivered at NAIROBI by Azangalala J, this 15th day of April 2005.
F AZANGALALA
JUDGE
Read in the Presence of: