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|Case Number:||Civil Case 1388 of 1997|
|Parties:||Zulfikar Ali Hassanally And Rustam Hira (Suing As The Legal Representatives Of The Late Abdul Karim Hassanally) Nyota Service Station Limited v Westco Kenya Limited, Mwai Kibaki, Kibaki Muriithi & John Kabiru|
|Date Delivered:||09 Mar 2016|
|Court:||High Court at Nairobi (Milimani Law Courts)|
|Citation:||Zulfikar Ali Hassanally And Rustam Hira (Suing As The Legal Representatives Of The Late Abdul Karim Hassanally) Nyota Service Station Limited v Westco Kenya Limited & 3 others  eKLR|
|Case Outcome:||Notice of Motion allowed|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 1388 OF 1997
ZULFIKAR ALI HASSANALLY AND
RUSTAM HIRA (suing as the legal representatives
of the late ABDUL KARIM HASSANALLY)
NYOTA SERVICE STATION LIMITED....…………PLAINTIFFS
WESTCO KENYA LIMITED
DR. JOHN KABIRU………………......….............DEFENDANTS
In this application (by Notice of Motion dated 7th September 2015), the 2ndDefendant seeks the main orders that the Plaintiff’s suit as against him be struck out.
The application is stated to be brought under section 1A and 1B of the Civil Procedure Act, Cap 21 (the Act) and under Orders 2, rule 15(1) (a) and 51, rule(1) of the Civil Procedure Rules (the Rules).
The grounds for the application set out on the face thereof are –
(i) That the cause of action as against the 2nd Defendant as contained at paragraph 9 of the Plaint is allegedly based on a personal guarantee dated 6th June 1991 guaranteeing the indebtedness of the 1st Defendant to the Plaintiffs.
(ii) That there is no such personal guarantee or any other guarantee for that matter ever given by the 2nd Defendant to the Plaintiffs.
(iii) That it is trite law that a guarantee has to be in writing and signed by the person giving it and no such guarantee by the 2nd Defendant has been produced by the Plaintiffs in this matter.
(iv) Thatthe Plaintiffs in their documents filed on 14th June 2000 have not exhibited any such alleged guarantee.
(v) That it is therefore clear that there is no reasonable cause of action as against the 2nd Defendant and the suit herein ought to be struck out.
(vi) That the orders sought will further the overriding objective of the Civil Procedure Act and Rules by ensuring the expeditious disposal of the case as against the 2nd Defendant in a just and cost saving manner.
(vii) That it is in the interests of justice that the orders sought be granted.
In response to the application the Plaintiffs filed grounds of opposition dated 5th October 2015. These are the grounds set out–
The application was canvassed by way of written submissions. The 2ndDefendant’s submissions were filed on 17th November 2015 while the Plaintiffs’ were filed on 4th December2015. I have considered the submissions, including the cases cited.
The Plaintiffs’ case as pleaded in the plaint as against the 2nd Defendant is –
They therefore sought Kshs. 10,182,496/40with interest and costs of the suit.
In the defence dated 13th August 1997 the Defendants jointly denied the Plaintiffs’ claims. More particularly the 2nd, 3rd and 4th Defendants denied –
In the case of DT Dobie & Company (Kenya) Ltd –vs– Muchina  KLR 1 it was held as follows,inter alia, by the Court of Appeal –
Additionally, the Court should not permit an action to be tried by way of affidavits and submissions under the guise of an application to strike out pleadings.
An application to strike out a pleading upon the ground that it discloses no reasonable cause of action or defence does not permit evidence beyond the pleading itself. See Order 2, Rule 15(2) of the Rules.
The plaintiff’s plead breach of contract as against the 2nd Defendant who guaranteed to pay the Plaintiff’s loan advanced in case the 1st Defendant failed to pay. The Plaintiffs have failed to provide facts and or evidence that support their cause of action against the 2nd Defendant.However, looking at the plaint without more, it cannot be said that it raises no reasonable cause of action. Whether or not that cause of action will succeed in light of the defence put forward by the Defendants is a different matter best left to trial of the action.
The Plaintiffs have not filed a replying affidavit to verify the grounds of opposition. The consequence of this failure to file replying affidavit in response to the present application is that all issues of fact that were raised by the 2nd Defendant are not controverted. For example the issue raised by the 2nd Defendant to the effect that there was no valid guarantee signed by him as in any case it has not even been exhibited in the Plaintiffs’ documents.
This court shall therefore take those assertions to be true. The failure to file a replying affidavit in contention of a fact amounts to an admission of facts. This was the holding in the case of Kennedy Otieno Odiyo & 12 others v. Kenya Electricity Generating Company Limited (2010) eKLR-
"In the absence of the replying affidavit rebutting the averments in the applicant's supporting affidavit, means that the respondents have no claim against the applicant. "
Although the Civil Procedure Act has granted this court unlimited inherent powers which should be used to allow a hearing of the substantive claim on merit, the court is nevertheless not bound to sustain a limping pleading, in this case the plaint, up to hearing stage otherwise Order 2 rule 15 would not have been made.
In view of the foregoing, the Notice of Motion dated 7th September 2015 is hereby allowed. The suit as against the 2nd Defendant is hereby struck out as it does not exhibit any reasonable cause of action as against him. The second defendant shall have the costs occasioned by this application
Dated and delivered at Nairobi this 9th Day of March, 2016.