1.This ruling is on the notice of motion dated 15/1/2021. The motion which is by the defendant is brought under order 13 rule 2 of the Civil Procedure Rules, section 3A of the Civil Procedure Act and article 40 of the Constitution. It seeks the following orders.a.That judgment be entered in favour of the Defendant against the Plaintiff in terms of prayers (a) and (b) of the counter claim dated 13/1/2021.b.That the costs of this application be in the cause.
2.The motion is based on two grounds and is supported by the affidavit of Joshua Kimaita Kirera, a director and shareholder of the Defendant. In summary, the Defendant is saying that the Plaintiff has admitted liability to the Defendant’s claim. It did this when it admitted to have defaulted in its loan payment as per paragraph 11 of the affidavit dated 28/10/2020. The said affidavit reads as follows.It is also admitted that L.R. 1583 was used as additional security to make the Plaintiff a little bit creditworthy because despite charging the other four parcels, he was not worthy of any credit. It is the Defendant which came to his rescue but on the understanding that he would repay the fresh loan to the bank at the quarterly rate of Kshs. 5, 749,232.00 which he failed to pay. Given the above explained circumstances, the Plaintiff has no defence to the counterclaim.
3.The motion is opposed by the Plaintiff and one of its directors and shareholders John Wainaina Gikonyo has sworn a replying affidavit dated 17/11/2021 in which he deposes as follows.For the above stated reasons, the motion should not be allowed.
4.I have carefully considered the motion in its entirety including the grounds, the affidavits, the submissions dated 23/11/2022, 10/4/2023 and 23/9/2023 and I find that it has no merit for the following reasons.
5.These are some of the questions that this suit elicits and only a full hearing will provide answers. This court should not strike out a suit that raises more questions than answers. Let the parties provide answers to those questions. The motion dated 15/1/2021 is dismissed. Costs in the cause.