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Court of AppealDismissedCivil Appeal No. 304 of 1996

Rasik P. Gadhia v Delphis Bank Limited [1997] KECA 50 (KLR)

Court of Appeal of Kenya
20 June 1997
712 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The appellant, Rasik P. Gadhia, appealed against a decision of the High Court at Kisumu (Wambiliangah, J.) striking out his written statement of defence in a liquidated-demand suit by Delphis Bank Limited for Kshs. 1,960,562, said to comprise overdraft advances and accrued interest. The defence was a general denial of the claim. The bank's striking-out application exhibited correspondence, including a letter of 25th October 1995 stating the indebtedness and the appellant's reply of 15th November 1995 in which he acknowledged his indebtedness and proposed how to liquidate it. The appellant did not challenge the authenticity or correctness of the letters and adduced no evidence of payment. The Court of Appeal (Omolo, Pall, JJ.A and Bosire, Ag. J.A) held in a single judgment of the court that the appellant had admitted owing at least Kshs. 1,860,061, that the general denial disclosed no triable issue, and that the defence was frivolous and filed merely to delay the course of justice. The court affirmed the exercise of discretion under Order VI rule 13(1)(b) and (c) and Order XII rule 6 of the Civil Procedure Rules. It also warned that advocates filing frivolous appeals may in future be personally liable for costs. The appeal was dismissed with costs to the respondent. No authorities were cited in the judgment.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the High Court properly exercised its discretion under Order VI rule 13(1)(b) and (c) and Order XII rule 6 in striking out the appellant's written statement of defence
  2. 2.Whether the appellant's defence disclosed any triable issue

Key legal issues

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01

Striking out a defence for disclosing no triable issue

Holding

The Court of Appeal affirmed the High Court's striking out of the defence, holding that an admission of indebtedness in correspondence coupled with a general denial left no issue for trial.

Reasoning

The appellant's letter of 15th November 1995 acknowledged his indebtedness and proposed how to liquidate it, without challenging the authenticity or correctness of the bank's letters. He adduced no evidence of payment. Against that admission, the general denial in the defence disclosed no triable issue and was filed merely to delay justice, justifying the exercise of discretion under Order VI rule 13(1)(b) and (c) and Order XII rule 6.

p. 2
02

Professional responsibility of advocates filing frivolous appeals

Holding

The court issued a warning that advocates filing frivolous appeals may be ordered to personally bear the costs of dismissal.

Reasoning

The court considered that neither the appellant nor his counsel could have believed the appeal had merit, and that counsel, as an officer of the court, knew or ought to have known the appeal was bound to fail. It used the occasion to sound a warning aimed at deterring frivolous appeals, though it did not in this case make a personal costs order against counsel.

p. 2

Legal principles established

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  • A defence that amounts to a general denial where the defendant has by correspondence admitted the debt, and which discloses no triable issue, may properly be struck out as frivolous and an abuse of the court's process.
  • Advocates who file frivolous appeals may in future be personally liable for the costs of dismissing such appeals.

Court orders

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  1. 1.Appeal dismissed with costs to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Kisumu
H.C.C.C. No. 27 of 1996
Jurisdiction invoked
First appeal to the Court of Appeal under the Civil Procedure Act/Civil Procedure Rules (appeal against exercise of discretion under Order VI rule 13(1)(b) and (c) and Order XII rule 6)

Relief refused

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Setting aside the striking out of the appellant's defence

The defence was a general denial, admitted an indebtedness of at least Kshs. 1,860,061, and disclosed no triable issue; it was frivolous and filed to delay justice

p. 2

Costs

Appeal dismissed with costs to the respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the result and for the reasons above, we dismiss this appeal with costs to the respondent.
p. 2Final orders - dismissal of appeal
we cannot see what issue was disclosed to go to trial. The defence, we think, was purposely filed merely to delay the course of justice.
p. 2No triable issue; defence frivolous
advocates who file frivolous appeals, as the present one, may in the future be called upon to personally meet all the costs which may be ordered upon the dismissal of such appeals.
p. 2Warning to advocates on frivolous appeals

Issues in the judgment

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minor

The judgment inconsistently spells the trial judge's name as 'Wambiliangah' and 'Wambiliyangah'.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Rasik P. Gadhia v Delphis Bank Limited [1997] KECA 50 (KLR)", Case Analysis (1997). Civil Appeal No. 304 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/50/eng@1997-06-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.