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Kenya Railways Corporation v. Development Bank Of Kenya Limited

(2017) JELR 99947 (CA)

Court of Appeal  •  Civil Appeal 202 of 2012  •  9 Jun 2017  •  Kenya

Coram
Erastus Mwaniki Githinji, Hannah Magondi Okwengu, Jamila Mohammed

Judgement

JUDGMENT OF THE COURT

[1] This is an appeal from the judgment of the High Court (Mutava, J.) allowing with costs the respondent’s application for striking out the appellant’s suit under Order 2 Rules 15(b) (c) and (d) of Civil Procedures Rules, 2010 and sections 1A, 1B and 3A of Civil Procedure Act.

[2] The appellant by an amended plaint dated 16th April 2010 prayed for judgment against the respondent bank (bank) herein for:

a. Shs.50,000,000 due under bank guarantee No. GDBK/2009/066 dated 8th July 2009 issued y the respondent as tender security on behalf of Erdermann Property Limited.

b. Shs. 215,000,000 due under bank guarantee No. GDBK/2009/067 dated 8th July 2009 issued by the respondent as tender deposit on behalf of Erdermann Property Limited.

The appellant in addition claimed for interest and costs.

[3] The facts on the basis of which the claim was made and pleaded in the plaint are stated in paragraphs 3.1-3.8 hereunder thus:

[3.1] In the months of June and October, 2009, the appell…

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