- The Appellant was sued by the Respondent for recovery of the sum of Kshs. 5,500,000/= pleaded to be the sum advanced to the Appellant by the Respondent by way of a friendly loan which the Appellant had failed to pay back as agreed and at all. To the Respondent, as Plaintiff at trial, the appellant, as the Defendant at trial, filed a defense which admitted that there having been a soft loan but asserting that the same had been paid back.
- As soon as the defense was filed and served, the Respondent filed a Notice of Motion premised upon the provisions of Order 2 Rule 15(1)(a)(b)(c) and (d) of the Civil Procedure Act but also citing the overriding objectives of the court as well as inherent powers of the court provisions. The application sought the striking out of the statement of defence dated 10/11/2020 and entry of judgment for the Plaintiff on the basis that the said defence disclosed no cognizable defense, was otherwise scandalous, frivolous and vexation and would prejudice, embarrass and delay the matter thus defeating the overriding objectives of the court. It was also contended that having admitted the existence of the debt, the defense was a sham consisting of mere denials and therefore unmerited.
- The application was supported by the affidavit of the Respondent which essentially reiterated the grounds on the face of the motion with an additional assertion that at the request of the 2nd Appellant he lend to him the sum of Kshs. 5,500,000/= by depositing the same into the account of the 1st Respondent. He exhibited a bank pay in slip for the said transaction made on the 29/11/2017. That by September 2020, the refund had not been effected and a demand was made by a letter of that date which however did not yield any results. The Respondent specifically asserted that the contention in the defence that the same had been paid could not be true as there was no evidence of such payment and the statement of defense filed was a mere denial and thus a sham.
- To the application, the Appellant filed a replying affidavit whose gist was that indeed he was given a loan by the Respondent on soft loan informal basis and that he was introduced to the Respondent by one Sameer Parmer who also introduced him to other friends from whom he borrowed other sums all aggregating to Kshs. 91,770,500/=. He asserted that he had repaid the loan to the Respondent and exhibited bank statements to show the out and inflows.
- He asserted that the sum of Kshs. 24,967,510/= shown to have been paid to the said Sameer Parmer was paid for onward transmission to the Respondent and one Raihan Kasim. He then added that a complaint was made with the police who investigated and found out that no money was owing. The replying was responded to by a further affidavit in which the Respondent insisted that no money went through a third party and none was expected back though any third party.
- That Application was argued by way of written submissions filed by both sides which were considered by the trial court and culminated in the ruling appealed against. In the ruling, the trial court said: -
“I have seen the cheque deposit slip dated 29/11/2017. The drawer is Pravinkant Vadgama. The cheque is for Kshs. 5,500,000/= and the title on the account is Khalsa Motors (2005). The 2nd Defendant avers that he has instructions to swear the replying affidavit on behalf of the 1st Defendant. It is clear that the 1st Defendant is not a stranger to the 2nd Defendant herein. The 2nd Defendant in his defence has admitted the debt. He avers that a substantial amount on the said debt had been paid. There is however no cheque as emanating from Khalsa Motors for the payment of Kshs. 5,500,000/= deposited to it by the Plaintiff herein.
The 2nd Respondent cannot admit to having paid back a substantial amount and fails to adduce evidence. I am not persuaded to find that the defence on record raises any triable issue. It is a waste on the court precious time. In the end I allow the application.” (emphasis added)
- The decision aggrieved the Appellant who filed the current appeal and faulted the trial court on the ten (10) grounds of appeal as set out in the Memorandum of Appeal. The several grounds sum as to whether the trial court did exercise his discretion properly in striking out the defence without affording to the Appellant an opportunity to lead viva voce evidence.
- Being a first appellate court, the law obligates the court to proceed by way of a retrial and to re-examine and re-appraise all the material presented at trial and to come to own conclusion. In exercising that mandate the court has read the pleadings filed before the trial court together with the application for striking out and the affidavits filed subsequent thereto. It has equally read the submissions on appeal and given due regard to the highlights offered.
- From that reading, the court notes that the claim was indeed liquidated and shown to have been advanced to the Appellants by direct deposit of a cheque into 1st Appellant’s account. While the Appellants contended that the sum had been paid back through a third party, there was no allegation that the Respondent had requested or indeed concurred that he had paid through a third party. The agreement the appellant calls soft informal loan was between the two parties and it required a discernible agreement or variation to incorporate a third
- The court finds that there was no reasonable defense explaining why the debt was not due. Instead the court finds that as crafted the statement of defence was evasively drawn to convolute and blur the issues with a design to unduly employ the judicial time and delay the just conclusion of the matter. The court gets guidance from the decision of the Court of Appeal in Raghbir Singh Chatte v National Bank of Kenya Limited [1996] eKLR that a bare denial never suffices. In the words of the court, parties need to be candid, straight forward and explicit in their pleadings especially while answering to liquidated claims.
- In its exact words the court said:
“…a general denial of claim is not a sufficient defense in a suit for liquidated demand. Where the facts are clearly set out in the claim, a general denial is of no use and demonstrates not only a reprehensible lack of candidness in the defense but also that the defense discloses no reasonable defense which can be the basis for an application to strike out defense”
- Where the court is called upon to determine whether the suit discloses a cause of action or if the defense discloses a reasonable one, the court employs the provisions of order 2 Rule 15 on which the court viewed the purpose of the rule to be:-
“The main object of this rule and r.14 is to bring the parties by their pleadings to an issue, and indeed to narrow them down to definite issues, and so diminish expense and delay, especially as regards the amount of testimony required on either side at the …This object is secured by requiring that each party in turn should fully admit or clearly deny every material allegation made against him. Thus, in an action for a debt or liquidated demand in money, a mere denial of the debt is wholly inadmissible.”
The court thus upholds the finding by the trial court that the Appellant’s defence revealed no reasonable defense but was evasive and intended to unduly employ judicial time. The consequence is that the appeal lacks merits and is dismissed with costs.
Dated signed and delivered at Nairobi this 22nd day of March 2024