Please Wait. Searching ...
|Case Number:||Civil Case 261 of 2003|
|Parties:||Silvanus Kiprasi Tubei v Kenya Commercial Finance Company Ltd|
|Date Delivered:||25 May 2006|
|Court:||High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)|
|Judge(s):||Philip John Ransley|
|Citation:||Silvanus Kiprasi Tubei v Kenya Commercial Finance Company Ltd  eKLR|
|Parties Profile:||Individual v Corporation|
[Ruling] - CIVIL PRACTICE AND PROCEDURE – pleadings – striking out – application for – applicant sought to strike out the plaint on the grounds that it was vexatious – where the made some averments that had to be resolved at trial – effect of – applicable principles – whether the court can strike out various paragraphs of pleadings
|History Advocates:||Neither party represented|
|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 (MILIMANI COMMERCIAL COURTS)
Civil Case 261 of 2003
SILVANUS KIPRAISI TUBEI ………........................................…………………….PLAINTIFF
KENYA COMMERCIAL FINANCE COMPANY LTD………………………..DEFENDANT
By his application of the 3.3.2006 the Applicant seeks to strike out the Plaint herein on the grounds that it is frivolous and vexatious.
The Plaint seeks the following orders:-
(a) A declaration that there is no charge created by the plaintiff in favour of the defendant in respect to Uasin Gishu Settlement Scheme/123
(b) An injunction restraining defendant, its servants, agents and or employees or otherwise howsoever from selling and or disposing off or alienating or otherwise howsoever from interfering with the plaintiff’s proprietary rights over Uasin Gishu Settlement Scheme/123.
(c) The defendant be ordered to render an account of the process of sale of property known as Eldoret Municipality 8/240
It is alleged in the Plaint that in respect of a charge over Eldoret Municipality 8/240 the Defendant has exercised its statutory power of sale in respect of monies which it is admitted the Plaintiff had defaulted in paying to the Defendant.
A further averment is that the Defendant has purported to exercise its statutory power of sale in respect of a property owned by the Plaintiff and known as Uasin Gishu Settlement Scheme/123. It is stated in paragraph 8 of the Plaint that attempt by the Defendant to exercise a legally non-existent power of sale not charged to it is unlawful.
Without prejudice the Plaintiff contends that no statutory notice of sale was served by the Defendant.
This allegation is, I presume without prejudice because the Plaintiff claims there is a charge over this property.
The Applicant herein refers to a copy of a charge in respect of the said property which is annexed to the supporting affidavit of Anthony Maino to this application. The copy of the charge shows that it has been stamped and has been executed and duly registered in the appropriate land registry. A copy of a search is also annexed showing that the charge is registered against the title to the property.
No evidence has been adduced by the Respondent to deny the evidence of the charge.
It is clear that the allegation in the Plaint that there is no charge over the property cannot be sustained and the allegation is clearly frivolous.
As a result I strike out paragraph 7 of the Plaint in so far as it avers that the property was never charged to the Defendant as well as prayer (a) in the Plaint.
I will not strike out the whole of the Plaint as there is an allegation that no statutory notice was served which is an issue, which has not yet been resolved.
The Applicant will have the costs of the application.
Dated and delivered at Nairobi this 25th day of May, 2006.
P. J. RANSLEY