FRANKLIN KITHINJI v BONIFACE OTIENO & DAVID KAIGWA [1998] KECA 25 (KLR)

REPUBLIC OF KENYA IN THE COURT OF APPEAL OF KENYA AT NAIROBI Civil Appeal 56 of 1995

FRANKLIN KITHINJI……………………….......................................…………………….APPELLANT

AND

BONIFACE OTIENO…………………………..............................….……………...1ST RESPONDENT

DAVID KAIGWA……………………………...............................………………… 2ND RESPONDENT

(Appeal from the Ruling and Orders of the High Court of Kenya at Nairobi  (Mr.

Justice Hayanga) delivered on 16th January, 1995

IN

H.C.C.C. NO. 5552 OF 1993)

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JUDGMENT OF THE COURT

This an appeal from the decision of the superior court (Hayanga J) given on 16th January, 1995, by which the learned Judge dismissed an application brought by Franklin Kithinji (the appellant) seeking to strike out the defence and counterclaim filed by the  respondents on 2nd December, 1993.

The appellant filed a suit against the respondents to recover damages for trespass and damage to his goods.  The respondents filed a detailed defence denying the appellant’s claim together with a counterclaim.  The Judge was satisfied that the defence disclosed a reasonable defence to the appellant’s claim and dismissed the appellant’s application. We have perused the defence and like the learned Judge we too are also satisfied that it disclosed a reasonable defence to the appellant’s claim.

For these reasons this appeal fails and is accordingly dismissed with costs to the respondents.

Dated and delivered at Nairobi this 5th day of June, 1998.

J. E. GICHERU

…………………..

JUDGE OF APPEAL

R. O. KWACH

…………………….

JUDGE OF APPEAL

A.   A. LAKHA

………………….

JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR