Automated Summary
Key Facts
This case involves Paul Imison seeking to strike out Jodad Investments' defence in Civil Case 285 of 2009, arguing it is frivolous and an abuse of process. The dispute stems from a prior suit (HCCC No. 693 of 2000) where Jodad was the plaintiff and Paul the defendant. On 25 April 2006, the court ruled in Paul's favor, vacating injunctive orders that had been in place since April 2000. The current case arises from an inquiry into damages caused by those injunctions. The application to strike out the defence was dismissed with costs, and the matter was directed to proceed to trial with new issues requiring proof.
Issues
- Whether the Defendant's defense, filed in response to the Chamber Summons application, is frivolous, vexatious, or an abuse of the court process, thereby warranting its strike-out under Section 3A of the Civil Procedure Act and Order VI Rule 13 (b) (c). The court examined if the defense raised triable issues or if the application to strike it out lacked merit.
- Whether the current suit by Paul Imison (Plaintiff) is a legitimate pursuit of a prior court order (from HCCC No. 693 of 2000) requiring an inquiry into damages caused by injunctive orders, or if it constitutes an abuse of process by re-litigating issues already addressed in the previous judgment. The opposing party argued for a bona fide defense and new allegations.
Holdings
- The court directed the Plaintiff to file documents and witness lists within 20 days, followed by the Defendant within 20 days after service. The matter must be listed for hearing within 20 days of completing these pre-trial steps.
- The court dismissed the application to strike out the Defendant's defence and ruled that the suit must proceed to a full hearing. The application was found to lack merit and was considered an abuse of the court process.
Remedies
- The Plaintiff is directed to file and serve upon the Defendants its bundle of documents and lists of witnesses within 20 days from the date of this Ruling. The Defendant shall file and serve their bundle of documents and lists of witnesses within 20 days after service by the Plaintiff.
- The application to strike out the Defendant's defence was dismissed with costs in the cause. This decision was made after considering the submissions from both parties and reviewing the pleadings.
- This matter must be listed for hearing within 20 days of the completion of pre-trial proceedings, following the filing of documents and witness lists by both parties.
Legal Principles
The court applied the principle of res judicata, determining that the defense raises triable issues and thus cannot be struck out as it is not plainly unsustainable. This aligns with the ruling in TRAD BANK LTD. v KERSAM LTD. (1991) which established that pleadings can only be struck out in plain and obvious cases when they are clearly unsustainable.
Precedent Name
TRAD BANK LTD. - VS - KERSAM LTD. & ANOTHER
Cited Statute
- Civil Procedure Rule
- Civil Procedure Act
Judge Name
E. K. O. Ogola
Passage Text
- This is not a small claim. It is also clear that the new suit has brought in new issues which will require specific proof.
- the court observed that pleadings can only be struck out in plain and obvious cases when the pleadings in question are on the face of it unsustainable.
- I dismiss the application with costs in the cause. I further direct the Plaintiff to file and serve upon the Defendants its bundle of documents and lists of witnesses within 20 days from the date of this Ruling.