D.M. Amayamu V Benjamin K. Tanui  EKLR
|Civil Suit 23 of 1992||05 Dec 1994|
Roselyn Naliaka Nambuye
High Court at Eldoret
D.M. Amayamu v Benjamin K. Tanui
D.M. Amayamu v Benjamin K. Tanui  eKLR
DM Amayamu & Co Advocates v Tanui
High Court, at Eldoret December 5, 1994
Civil Suit No 23 of 1992
Civil Practice and Procedure – striking out of defence – application for – applicant arguing that defence was scandalous, frivolous and vexatious – where it’s likely to delay fair disposal of suit – where it’s hopeless and doesn’t raise any triable issues – whether defence can be struck out on this basis.
The plaintiff filed a suit against the defendant asking that an order do issue for the defendant to return title No Nandi/Kamoiywo/982 or in the alternative to pay the sum found due to M/s Standard Chartered Bank Kapsabet, costs and interests.
The defendant entered appearance and filed a defence which was out of time. The plaintiff thereafter filed chamber summons seeking to strike out the defence on the ground that it was frivolous, vexatious, and was likely to prejudice, embarrass or delay the fair disposal of the suit.
He also requested for interlocutory judgment to be entered in his favour, but it was delayed, and this is when the defence entered appearance and filed defence.
1. The cardinal principle in an application such as this is that before a party is deprived of his right to defend the suit, the defence must be totally hopeless and that it does not raise any triable issues at all.
2. When the defendant took out the loans he knew that the responsibility fell on him to make good those loans. He therefore could not be allowed to wriggle out of his responsibilities on points of technicalities.
3. The principle that one has to make good before he seeks indemnity had not been shown, and even if it were, the same was not a bar to the Court to look at the situation of both parties and see who had soiled his hands most.
Defence struck out.
No cases referred to.
1. Civil Procedure Rules (cap 21 Sub Leg) order VI rule 131(b), (c); order IXA rule 8
2. Advocates Act (cap 16)