Straight Security Limited v Put Sarajevo General Engineering Limited [2017] KEHC 2010 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

COMMERCIAL AND ADMIRALTY DIVISION-MILIMANI

HCCC NO.122 OF 2017

STRAIGHT SECURITY LIMITED………….….......PLAINTIFF/APPL.

VERSUS

PUT SARAJEVO GENERAL

ENGINEERING LIMITED………………………..DEFENDANT/RESP.

R U L I N G

This is a ruling on Notice of Motion dated 12th may 2017 brought under sections 1A, 1B and 3A of the Civil Procedure Act and order 2 rule 15(1)(b),(c) and (d),order 13 Rule 2 and order 50 Rule 1 of the Civil Procedure Rules. It seeks to strike out the Defendants defence dated 25th April 2017 and judgment to be entered in favour of the Plaintiff against the Defendant for the sum of Kshs. 32,450,503 plus interest and costs.

Grounds on the face of the application are as follows;

That the defence is scandalous, frivolous and is abuse of Court process.

That the Defendant acknowledged the debt to the Plaintiff in a letter days before the filing of this suit.

That the Defendant has now reneged on the promise to pay and is feigning ignorance of existence of a contract.

The application is supported by affidavit of Francis Munene the Director of Plaintiff sworn on 12th April 2017. He averred that clause 2 of Addendum 1 to the contract between Plaintiff and the Defendant did not limit areas to be covered by the Plaintiff; but instead left open for the Plaintiff to instruct the Defendant on the property and location to be guarded; that the Plaintiff gave instructions on projects at Kangunduini Road Construction project, Othaya Project and Hurlingum office project. He averred that the Defendant acknowledged receiving services as evidenced by a sample of daily worksheet signed by both Plaintiff and the Defendant’s field supervisors. Copies of the worksheets are attached to the affidavit.

He averred that the Defendant while questioning provision of services for Kabati and Othaya road projects in the letter dated 14th March 2017, acknowledged existence of balance for projects and promised to settle before end of April 2017. The letter is annexed to the Affidavit.

He averred that if the Defendant lost money as a result of Plaintiff’s negligence, the Plaintiff has insurance with Heritage Insurance which could compensate if a loss is attributed to the Plaintiff. He added that any incidence at the guarded premises were dealt with immediately and any minor occurrences to which Plaintiffs  servants were liable, credit notes were given by the Plaintiff to the Defendant immediately.

He attached the Defendant’s statement showing credits for 3/1/2013 and 12/31/2013. He concluded that the defence does not disclose reasonable cause of action and should be struck out. The Defendant never filed Replying Affidavit.

Both parties filed written submissions.

Plaintiff submitted that when this matter came up on 18th July 2017 Defendants Advocate confirmed that the Defendant owed the Plaintiff the sums claimed and promised to make an initial payment of Kshs. 6,000,000 within 7 days and that parties were to record a consent on the balance in the next mention; that the Plaintiff failed to pay the initial deposit as agreed. That the Defendant filed defence on 25th April 2017 making strange denials aimed at defeating justice and delaying this matter. That no incident report of alleged losses has been attached. And in any event the Plaintiff has insurance to cover against such acts of negligence. That such claims if any should have been reported to the Plaintiff within 15 days as provided in clause 11 of the security service contract between the parties herein. Plaintiff submitted that the claims are an afterthought meant to defeat justice. Further the Plaintiff has not disowned the letters acknowledging debt in their defence. Counsel for the Plaintiff cited the case of GEORGE P.B.OGENDO VS. JAMES NANDASA & 4 OTHERS (200) EKLRwhere Court held as follows;

“…an evasive and vague defence from which the Plaintiff cannot know what defence it is being pleaded will normally be struck out on the grounds that it is wanting in seriousness and tends to annoy.”

The Court held further that;

“The term abuse of Court process connotes that the process of the Court must be carried out properly and honestly and in good faith, and it means that the Court will not allow its functions as a Court of law to be misused.”

Plaintiff also cited BLUE SKY EPZ LIMITED VS NATALIA POLYAKOVA & ANO. (2007) eKLR where the Court held

“The power to strike out pleadings is draconian and the Court will exercise it only in clear cases where, upon looking at the pleading concerned, there is no reasonable cause of action or defence disclosed.”

Plaintiff submitted that Defendant claim to have settled debts yet its own account ledger duly stamped and supplied to the applicant acknowledges the outstanding sum.

In response the Defendant submitted that the defence filed is genuine, arguable and raises bonafide triable issues which justify the Defendant being granted leave to defend the suit to enable Court arrive at a correct determination. He paused a question as to whether the Court will be able to determine the sum owing without hearing the suit. Defendant submitted that the Plaintiff admitted incidences of losses and in such circumstances there would be need to reconcile its accounts and deduct from dues owing to the Plaintiff. That the defence dated 25th April 2017 indicate that the Plaintiff has since been paid Kshs. 51,624,202. 32 constituting full payment for services offered by the Plaintiff. He submitted that the admission was in respect of the payments which have already been made and that no authentic evidence has been tendered by the Plaintiff to warrant the Defendant being condemned unheard. He urged Court to adopt the decision of Madan J in the  case of D.T. DOBIE & COMPANY(KENYA) LTD VS.MUCHINA (1982) KLRwhere the Court held as follows;

“Summary judgment is a draconian measure only comparable to proverbial “sword of Damocles” and should be given in only the clearest of cases. Trial must be ordered if a triable issue is found or one which is fairly arguable is found to exist”.

Defendant concluded that the defence filed on 27th April 2017 raises triable issues that should be considered and adjudicated by this Court.

I have considered rival submissions by both parties herein. I have also perused the Court proceedings and documents filed. On 18th July 2017 when this matter came up for highlighting of submissions in respect of this application, Advocates herein informed the Court that they had been corresponding and the Defendant was willing to settle the matter and promised to pay an initial sum of 6 million. They requested for a mention date in 14 days to record consent on the balance. The next mention was on 20th September 2017 when Counsel for Plaintiff informed Court that no payment had been made and asked Court to set a date for hearing of this application. Counsel for Defendant asked for time to file response to the application. Defendant never filed response/replying affidavit.

Defence was filed on 25th April 2017. The Defendant committed itself to settle the claim in Court on 18th July 2017. The Defendant never disputed the amount owing to the Plaintiff at the time of promising to pay. There is no document to prove any payments after Plaintiff committing itself to make payment. On the issue of losses raised by the Defendant, the Plaintiff has annexed statements showing credit given to Defendant in such instances. Copy of insurance policy for losses occasioned by negligence on part of Plaintiff’s employees has also been filed. Defendant failed to explain reason for failing to pay the initial sum of 6 million within 14 days as per their commitment in Court. If there was any arguable dispute on the Plaintiff’s claim, Counsel for the Defendant would have raised it before making commitment to settle the claim in Court. In the letter dated 7th January 2016 the Defendant admitted owing a balance of Kshs. 17,936,298. 54 as at 31st December 2015. By letter dated 14th March 2016 the Defendant apologized for failing to honour the promise and by letter dated 1st December 2017, promised to settle the debt in the month of March 2017. No document has been availed to prove any payment in March 2017 or after. The Defendant raised issue of losses in the letters attached. In the written submissions Defendant says payments have been made but failed to attach documents to prove any payment. Defendant never raised any dispute on the amount owing or claimed on 18th July 2107 when making commitment to settle the claim. From documents filed, it is evident that there was insurance to cover losses if any. Statements filed also show credit given where Plaintiff was required to pay for losses.

From the foregoing I find that the defence is an afterthought aimed at delaying determination of this suit. I therefore strike out defence filed herein and enter judgment for the Plaintiff as against the defendant for Kshs. 32,450,503 plus costs and interest.

Dated, Signed and Delivered this 15th day of November 2017

………………………

RACHEL NGETICH

JUDGE

IN THE PRESENCE OF

………………………………..COURT ASSISTANT

……………………………..…COUNSEL FOR PLAINTIFF/APPLICANT

…………………………..........COUNSEL FOR DEFENDANT/RESPONDENT