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Kenindia Assurance Company Limied v. First National Finance Bank Limited

(2008) JELR 100190 (CA)

Court of Appeal  •  Civil Appeal 328 of 2002  •  31 Oct 2008  •  Kenya

Coram
Philip Kiptoo Tunoi, Samuel Elikana Ondari Bosire, Daniel Kennedy Sultani Aganyanya

Judgement

JUDGMENT OF THE COURT

This is an appeal against the judgment of Mwera J. delivered on 5th November, 2002, in Nairobi High Court Civil Case No. 874 of 2002, pursuant to the provisions of Order 35 rules 1 and 2 of the Civil Procedure Rules.

In an application for summary judgment under the foregoing provisions, the duty is on a defendant to show he should have leave to defend the suit. His duty is limited to showing on a prima facie basis, the existence of at least one triable issue or that he has an arguable case. On the other hand if a plaintiff is able to show that a defence raised by the defendant in an action falling within the purview of the aforesaid provisions, is shadowy or a sham, he will be entitled to summary judgment (Continental Butchery Ltd v. Samson Musila Nthiwa Civil Appeal No. 35 of 1977. (CA).

In the above case, Madan J.A, enunciated the principles thus:

“With a view to eliminate delays in the administration of justice which would keep litigants out of their just dues or …

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