Automated Summary
Key Facts
Meditec Systems Limited (Plaintiff) filed a Notice of Motion dated 13 June 2024 in Civil Suit E027 of 2024 seeking to strike out the Defence and Counterclaim of Africare Limited (Defendant) and obtain judgment against the Defendant. The Defendant opposed, arguing the Defence and Counterclaim raise substantive issues requiring trial. The High Court at Nairobi (Commercial and Tax Division) ruled on 22 January 2026 that the Defence and Counterclaim raise bona fide triable issues, dismissed the application, and awarded costs to the Defendant.
Transaction Type
Dispute over supply of medical technology equipment
Issues
The court addressed whether the Defence and Counterclaim, which alleged breach of contract and financial losses, could be struck out as lacking merit. The court concluded that the Defence presented bona fide triable issues, thus refusing to strike them out and allowing the case to proceed to trial.
Holdings
The court dismissed the Plaintiff's application for striking out the Defence and Counterclaim, ruling that the Defence raises bona fide triable issues requiring full trial, and awarded costs to the Defendant.
Remedies
- The court dismissed the Plaintiff's application for striking out the Defence and Counterclaim, meaning the Defendant's case will proceed to trial.
- The court ordered that the costs of the application be awarded to the Defendant.
Legal Principles
The court applied the principle that striking out pleadings is a drastic remedy reserved for exceptional circumstances where a pleading is a complete sham. The Defence and Counterclaim raised bona fide triable issues requiring evidence, thus not meeting the threshold for striking out. The application was also found to violate natural justice by denying the Defendant a fair hearing.
Precedent Name
- D.T. Dobie and Company (Kenya) Ltd vs Muchina
- Blue Shield Insurance Company Ltd vs Joseph Mboya Oguttu
- Olympic Escort International Co. Ltd & 2 Others vs Parminder Singh Sandhu & Another
Key Disputed Contract Clauses
- The Defendant claimed that the Plaintiff failed to perform its obligations under the contract, specifically that the machinery supplied was unfit for intended use, suffered excessive downtime, and required costly repairs, resulting in financial losses.
- The Defendant disputed the Plaintiff's claim for liquidated damages, arguing that the machinery supplied was unfit for purpose and caused operational losses, so the liquidated damages amount was not justified.
Judge Name
BK NJOROGE
Passage Text
- the Counterclaim raises a triable issue with regard to the Plaintiff's breach of its obligations as referenced in paragraph 7 of the Defence. The issue of breach is one that requires proof through a trial. For that reason, the Defence cannot by any stretch of imagination be referred to as a sham.
- It is trite that, a triable issue is not necessarily one that the defendant would ultimately succeed on. It need only be bona fide.