Co-operative Bank of Kenya Ltd v Geoffrey Tharuba Koinange [2004] KEHC 1288 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA MILIMANI COMMERCIAL COURT CIVIL CASE NO. 317 OF 2004

CO-OPERATIVE BANK OF KENYA LTD……………………..………PLAINTIFF

VERSUS

GEOFFREY THARUBA KOINANGE…………………………...…….DEFENDANT

R U L I N G

The Plaintiff has applied under Order 6 Rule 13 (1) (b) (c) (d) and Order 35 Rule 1 (a) and (d) of the Civil Procedure Rules for the following orders:

1. That the defendant’s defence dated 20th July 2004 be struck out and judgment be entered against the defendant as prayed in the Plaint.

2. That in the alternative and without prejudice to prayer No. 1 above summary judgment be entered against the defendant as prayed in the plaint.

The application is based on the grounds: -

a) That the defence is a sham and does not disclose any triable issues;

b) That the defence is scandalous frivolous and or vexatious;

c) That the defendence has been filed with the sole intention of delaying the determination of this suit and is otherwise an abuse of the civil process.

The following came out of the counsel’s submission and affidavit evidence: -

That the defendant on or about February 1996 applied for a loan facility from the Plaintiff. A copy of letter of offer was exhibited before court.

The defendant executed a legal charge over his immovable property No. KIAMBA/THIMBIGUA/2807/2808 and 2810. The charge was exhibited.

The defendant failed to service the loan and the plaintiff unsuccessfully failed to realize its security.

The Plaintiff exhibited statements of account, which prove indebtedness.

The defendant in his defence raised firstly an issue that the plaintiff was presented by the defendant with a banker’s cheque for Kshs 500,00 but fraudulently refused to receive and credit the same to defendant’s account. The defendant alleged that this action frustrated him to clear the loan. I have looked at exhibit ‘KKA4’; a letter dated 29th May 1998 written by Mr. John K. Njehia. He indicated that he was withdrawing his offer to purchase defendant’s property because the same was charged to the plaintiff.

Consequently he withdrew his payment of banker’s cheque for kshs 500, 000/-. The defendant secondly raised an issue that the suit is time barred. I confirm that I have examined plaintiff’s exhibit ‘KKA 5’ and I have noted that the defendant last repaid part of the loan in March 1999 and indeed I accept the Plaintiff’s submission that time began to run as at that date. I therefore find that this suit is not time barred.

The defendant’s argument that the interest charged was exorbitant has no basis because the letter of offer gave the Plaintiff the right to alter the rate of interest with or without notice to the defendant.

I confirm having considered the evidence presented before me both in affidavit and in submission. I am of the view that the defence does not raise triable issues that can go for trial. Even the fact that the plaintiff filed a reply to defence does not amount to triable issues being raised.

I accordingly grant the Plaintiff the following orders.

(a) That the defendant’s defence filed in this case on 22nd July 2004 is hereby struck out and judgment is accordingly entered for the plaintiff as prayed in the plaint.

(b) The Plaintiff is awarded the costs of the application dated 22nd September 2004.

Dated and delivered this 19th day of November 2004.

MARY KASANGO

AG JUDGE