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FREMAR CONSTRUCTION CO. LTD v. MINAKSHI NAVIN SHAH

(2005) JELR 97167 (CA)

Court of Appeal  •  Civil Appeal 85 of 2002  •  7 Oct 2005  •  Kenya

Coram
Philip Kiptoo Tunoi, Emmanuel Okello O'Kubasu, Philip Nyamu Waki

Judgement

JUDGMENT OF THE COURT

This appeal arises from the ruling of the superior court, Osiemo J. dated 12th February, 2002 in which the learned Judge dismissed an application made by the appellant for striking out the defence in the main suit. The appellant had taken out an application under Order 6 rule 13(1)(b), (c) and (d) of the Civil Procedure Rules asserting that the defence on record consisted of mere denials; it was scandalous, frivolous, or vexious; may prejudice, embarrass or delay the fair trial of the action; and was otherwise an abuse of the process of the court. That is essentially the wording of the rule itself. In an elaborate affidavit, the appellant illustrated the genesis of the dispute and attempted to show how unmeritorious the defence on record was. None of the facts stated in the affidavit was controverted, nor did the respondent appear before the superior court to oppose the application in any other way despite having been served with the application. It was the same …

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