Geoloy Investments Ltd v Behal t/a Krishan Behal & Sons

High Court, at Nairobi

June 25, 2002

Mwera J

Civil Case No 1844 of 2001

Civil Practice and Procedure - setting aside judgment – application made to strike out defence – application served – defendant failing to file replying affidavit or grounds of opposition – defendant counsel not attending court at the hearing – evidence that defendant duly served – application proceeding ex-parte – application allowed – defendant applying to set the judgment aside – defendant advocate alleging he had been engged elsewhere – no statement in the affidavit that defendant wished to seek court’s indulgence to file replying affidavit/grounds of opposition out of time.

Civil Practice and Procedure - admission – defendant having admitted the claim – admission made in letter on a “without prejudice” basis – defendant subsequently denying the claim – letter of admission admitted in evidence – whether the court was obliged to exclude the letter - effect and scope of “without prejudice” communications.

The plaintiff applied to strike out the defence and for judgment to be entered on the ground that the defence raised no triable issues and that it was meant to delay the trial of the suit and was an abuse of the process of court. The plaintiff’s application was served on the defendant’s lawyer, who neither filed a replying affidavit or a statement of grounds of opposition nor attended court on the hearing date. The application proceeded ex-parte and was allowed. The defendant applied to set aside the ex-parte orders on the ground that its advocate had been committed in other matters elsewhere and that the court had made a mistake in admitting in evidence a letter written on a without prejudice basis admitting the claim.

Held :

1. The applicant having not filed a replying affidavit or grounds of opposition to the plaintiff’s application three clear days before its hearing, then in terms of order L, rule 16 (1) of the Civil Procedure Rules, he did not wish to oppose that application.

2. The defendant’s letter in issue was properly admitted as forming the basis of the claim that was granted by the court.

Application dismissed.

 Cases

1. Oliver v Nautilus Steam Shipping Co Ltd [1903] 2 KB 639

2. Walker v Wilsher (1889) 23 QB 335

3. Kurtz & Co v Spencer & Sons (1888) 57 LR 238

4. Rabin v Mendoza & Co [1954] 1 All ER 247; [1954] 1 WLR 271

5. La Roche v Armstrong [1922] 1 KB 485

6. Co-operative Bank of Kenya Ltd v Shiraz Sayani Mombasa High Court Civil Case No 23 of 1999

7. National Industrial Credit Bank v Yandal Enterprises Ltd & 2 others High Court Civil Case No 213 of 1999

Texts

Prabhas, C; Sarkar SS Sarkar’s Law of Evidence Calcutta: SC Sarkar and Sons 14th Edn

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order IV rule 5, order IXB rule 8, order L rule 16

2. Civil Procedure Act (cap 21) section 3A

3. Evidence Act (cap 80) section 23

Advocates

Mr Iseme for the Plaintiff/ Respondent.

Mr GBM Kariuki for the Defendant/ Applicant.