SOUTHERN CREDIT BANK LIMITED V HAREN MANDAVIA T/A FIDELITY TIMBER &HARDWARE; LTD & NYANZA STEEL & SCRAP CENTRE LTD [2012] KEHC 2947 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA ATNAIROBI

CIVIL CASE 372 OF 2010

SOUTHERN CREDIT BANK LIMITED::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::PLAINTIFF

- VERSUS -

HAREN MANDAVIAt/a FIDELITY TIMBER & HARDWARE LTD.:::::::::1ST DEFENDANT

NYANZA STEEL & SCRAP CENTRE LTD.::::::::::::::::::::::::::::::::::::::::::::::2ND DEFENDANT

R U L I N G

1. This is a Ruling on the Notice of Motion application dated 9th May 2012 filed under Order 2 Rule 15 (1) (c) and (d) and 51 Rule 1 of the Civil Procedure Rules, and Sections 1A, 1B and 3A of the Civil Procedure Act. The application seeks the orders namely:

(1)That this Honourable Court be pleased to strike out the Defence filed by the Defendant herein in favour of the Plaintiff as prayed in the Plaint.

(2)That the costs of this application and the suit be borne by the Defendants.

(3)That this Honourable Court be pleased to make such other or further orders as it may deem just and fit in the circumstances of the case.

The application is premised on the following grounds namely:-

(a)The Plaintiff’s claim is a liquidated one and found on a Loan Agreement between the 1st Defendant on the one part and the Plaintiff on the other part the due performance of which was guaranteed by the 2nd Defendant.

(b)The 1st Defendant in breach of his contractual obligation to the Plaintiff reneged on his obligation to Plaintiff hence the indebtedness.

(c)The Defendant is well and truly indebted to the Plaintiff in the sum pleaded in the Plaint being the principal borrower and Guarantor respectively.

(d)The Defence filed by the Defendants consists of mere denial and it continues to prejudice, embarrass or delay the fair trial of this matter.

(e)The Defence is otherwise an abuse of the process of this Honuorable Court.

(f)Such other and further grounds and reasons as shall be adducted at the hearing hereof.

2. In support of the application is an affidavit dated 9th May 2012 with several annextures sworn by BRIAN ASIN who is described as a Legal Officer of the Plaintiff Bank. The application is not opposed. Although the application was served as deponed in the affidavit of service filed in court on 4th June 2012 the Defendant has not opposed the same either by filing grounds of opposition or filing a replying affidavit or attending the court to submit in opposition thereof.

3. The brief history of the application from the pleadings is that by a loan agreement dated 28th February 2009, the Plaintiff at the request of the 1st Defendant is alleged to have advanced the1st Defendant a sum of Kshs.3,150,000/= on the terms inter-a-alia that the loan would be repaid on demand with an initial payment of Kshs.400,000/= to be received on or 31st March 2009 and thereafter monthly installments on or before 25thof each month over a period of 18 months with interest at 18% per annum and 24% per annum on any arrears. It is alleged that the Defendant by guarantee dated 28th February 2009 did guarantee the obligations of the 1st Defendant under the said loan agreement and did agree to pay any monies due or owing by the 1st Defendant. The 1st Defendant defaulted in making any payment and upon demand the 2nd Defendant has refused to meet his obligations under the said guarantee, hence this suit.

4. The Applicant has attached the following documents to the supporting affidavit:-

A letter of application dated 27th February 2009 by the 1st Defendant requesting the Plaintiff for a loan of Kshs.3,150,000/=.

Application for loan form by the Plaintiff for the sum claimed.

Loan Agreement dated 28th February 2009 between the Plaintiff and the Defendant.

Form of acceptance for a loan of Kshs.3,150,000/= by the 1st Defendant on 28th February 2009.

A Deed of Guarantee and Indemnity dated          28th February 2009 by the 1st Defendant.

A Demand Notice dated 22nd June 2009 for Kshs.3,286,219 by the Plaintiff to the 2nd Defendant.

A further Demand Notice dated 12th October 2009.

Statement of the Debtor’s account.

5. By their joint statement of defence filed in court on 6th August 2010 the Defendants have denied all the allegations in the Plaint and put the Plaintiff to the strict proof thereof. The Plaintiff has submitted that the said defence is a mere denial, a sham and an abuse of the process of this court.

6. I have considered the application in the light of all the pleadings in this matter. Firstly, in my view, the defence is a sham and a mere defence. These views are confirmed by the annextures and the affidavit in support of the application. The annextures prove the elements of the claim beyond reasonable documents. This being so, the defence is a sham, a mere denial and an abuse of the process of this court. No wonder, therefore, the Defendants have not opposed the application.

Under Order 2 Ruel1 5 (c) and (d) this court has the authority to strike out, at any time of the proceedings, a defence which discloses no reasonable defence or which may prejudice, embarrass or delay the fair trial of the suit; or a defence which is otherwise an abuse of the process of the court, all of which grounds I find to apply in the case within.

7. In the upshot I herewith strike out the Defence filed by the Defendants herein on 6th August 2010 and enter judgment against the Defendants herein in favour of the Plaintiff as prayed in the Plaint.

The costs of this application and the suit shall be for the Plaintiff.

It is so ordered.

DATED, READ AND DELIVERED AT NAIROBI

THIS 18TH D AY OF JULY 2012

E. K. O. OGOLA

JUDGE

PRESENT:

Njoki H/B for Luseno for the Plaintiff

N/A for the Defendants

Teresia – Court Clerk