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|Case Number:||Civil Case 105 of 2010|
|Parties:||WATER PARTNERS INTERNATIONAL v BENJAMIN K’OYOO T/A GROUP OF WOMEN IN AGRICULTURE – KOCHIENG (GWAKO) MINISTRIES|
|Date Delivered:||16 Dec 2010|
|Court:||High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)|
|Judge(s):||Murugi Geteria Mugo|
|Citation:||WATER PARTNERS INTERNATIONAL v BENJAMIN K’OYOO T/A GROUP OF WOMEN IN AGRICULTURE – KOCHIENG (GWAKO) MINISTRIES  eKLR|
|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|
IN THE HIGH COURT OF KENYA
COMMERCIAL & TAX DIVISION
CIVIL CASE NO.105 OF 2010
On 18th August 2010 the Plaintiff filed an application by way of a Chamber Summons dated 10th August 2010, brought under Sections A1 and B and 3A of the Civil Procedure Act and Order VI Rules 13 (1) (b) and (d) and 16 of the Civil Procedure Rules seeking orders of this court as follows:
2. That judgment be entered for the Plaintiff herein as prayed in the Plaint.
1. That the Defence is a sham
3. That there are no issues to go to trial arising from the Defence.
5. That the Defence is otherwise an abuse of the Court process.
The application is opposed on the strength of the Replying Affidavit of Benjamin K’Oyoo sworn on 24th September 2010, and filed on 4th October 2010, in which he depones that the defence raises triable issues requiring the tendering of evidence at a full trial, the main ones being;
(b) Whether the loans were actually disbursed and the terms of the loan agreement,
He further depones that fraud having been cited then the onus to prove the same lies on the Plaintiff/Applicant and such proof can only be by way of evidence adduced at a full hearing. Further, the Respondent contends that the court lacks jurisdiction to try the suit in view of the fact that the agreement referred to as giving rise to the cause of action contains an arbitration clause. He holds the view, also, that the Chamber Summons, which he argues is supported by a fatally defective affidavit, not only lacks merit but is also an abuse of the process of the court.
In paragraph 3 of the Defence the Respondent raises the issue of agency, which, is arguable in view paragraph 2 of the Plaint, which describes the Defendant as “a registered faith based Community Organization”. The question therefore whether the Respondent is personally liable in the circumstances, is one in respect of which the court must hear evidence, particularly since, the agreement relied upon is expressed to be between the Plaintiff and “GWAKO MINISTRIES”, as described in paragraph 2 of the Plaint. The letter alleged to have acknowledged the debt is signed by Benjamin K. K’Oyoo as the Program Director, G.W.A.K.O. Ministries. The cheques referred to as evidencing part payment are also drawn by the said G.W.A.K.O. Ministries and are signed by two signatories to the account. All this would appear to render credence to the Defendant’s averment that he acted as an agent and that the applicant should pursue the beneficiaries of the funds for reimbursement of the same, he says he made under paragraph 4 of the Defence.
(i) Coercion of communities to sign agreement to the effect that they had received the funds
(iii) Using funds from another named source to drill the boreholes while purporting to use the funds advanced by the Plaintiff/Applicants for the purpose
Clearly, the above are not matters which can be resolved in a summary application. Fraud must and can only be strictly proved by evidence at a full trial. I find that the agreement tendered herein as forming the basis of the contract between the parties not sufficient proof of the facts stated therein since, it is neither dated nor signed by the Respondent. From my perusal of the Report by M/S Deloitte & Touch I have formed the opinion that; for reasons stated therein, the probity value of the same can only be tested at a full hearing.
SIGNED and DELIVERED at NAIROBI this 16TH day of DECEMBER, 2010.
M. G. MUGO