JUDGMENT OF THE COURT
On 7th November, 1991 Githinji J. ruled that the defence filed by Kenya Cooperative Creameries Ltd. (the appellant) in the superior court did “not disclose a reasonable defence on the basis of which any issues can be framed and a trial held”. He was obviously referring to the issue of liability as he did say, and quite correctly in our view, that the issue of damages should proceed to proof by way of assessment of damages.
Mr. Mwenesi, for the appellant, argued before us that the learned judge (Githinji J.) erred in striking out the defence and he propounded his argument on the basis that Order Vi rule 13(1) (a) of the Civil Procedure Rules does not allow the court to go into evidence. That argument, in so far as Order V1 rule 13 (1) (a) is concerned is correct . But the plaintiff’s application in the superior court was based on Order V1 rule13(1) without specifying any of the particular grounds (a), (b) (c) or (d) of sub-rule (1). Whilst we would expect want couns…