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Court of AppealDismissedCivil Appeal No. 11 of 1996

JOHN PAUL TITI vs MUMIAS SUGAR CO. LTD [1997] KECA 375 (KLR)

Court of Appeal of Kenya
14 March 1997
1,438 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that a vague, evasive defence can be struck out entirely, handing Mumias Sugar an automatic win.

What this practically means

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Executive summary

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The Court of Appeal (Gicheru, Lakha and Pall JJ.A) dismissed the appellant's appeal against a High Court ruling (Ole Keiwua J, 14 November 1995) striking out his defence in Mumias Sugar Co. Ltd's claim for Shs.633,558.85 as money had and received or as advances. The respondent applied under O.6 r 13 of the Civil Procedure Rules to strike out the defence as disclosing none and as an abuse of process. The application proceeded exparte because the appellant's advocate filed grounds of opposition late, did not serve them, and failed to invoke the O.50 r 16(3) remedy of applying for leave to argue them. The Court of Appeal held that the defence was a bare general denial which, under O.6 r 9(3), was not a sufficient traverse; that a defective pleading can be cured only by amendment, and the appellant had ample opportunity to amend but made no attempt; and that the defence was evasive and internally inconsistent, conceding possible liability on dishonoured cheques while totally denying indebtedness, contrary to the appellant's own letter of 24 February 1990 authorising offset of the debt against his emoluments. Following Raghbir Singh Chatte v National Bank of Kenya, the court endorsed the principle that spurious alternative pleading discloses no reasonable defence for the purposes of O.6 r 13(1)(a). The appeal was dismissed with costs, affirming the striking out of the defence and the judgment entered for the respondent.

Questions the Court framed

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

  1. 1.Whether the appellant's defence disclosed any reasonable defence or triable issues
  2. 2.Whether the defence was an abuse of process intended to delay the fair trial of the suit
  3. 3.Whether the learned trial Judge erred in hearing and determining the respondent's application exparte

Key legal issues

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01

Whether the defence disclosed a reasonable defence or triable issues

Holding

The defence was a bare general denial, evasive and internally inconsistent, and disclosed no reasonable defence

Reasoning

The appellant's paragraph 2 was a bare denial; paragraph 3 inconsistently conceded possible indebtedness on dishonoured cheques. The appellant, having issued the cheques, knew whether they were honoured. His letter of 24 February 1990 acknowledged the debt and authorised offset against emoluments, while his later letter of 10 July 1992 admitted part of the debt, contradicting the total denial in the defence. Following Raghbir Singh Chatte, such spurious alternative pleading discloses no reasonable defence under O.6 r 13(1)(a).

p. 2
02

Whether a defective defence could be cured by the affidavit evidence

Holding

No; a defective pleading can be cured only by amendment, and the appellant had ample time to amend but did not

Reasoning

Counsel conceded the defence was no more than a general denial but argued the affidavit revealed triable issues. The court held it is trite law that a defective pleading is cured only by amendment. Between July 1995 and November 1995 the appellant had time to seek leave to amend and made no attempt. Under O.6 r 9(3) a general denial is not a sufficient traverse.

p. 2
03

Whether the exparte hearing of the striking-out application was erroneous

Holding

No; the appellant's advocate failed to file grounds of opposition in time or serve them, and failed to invoke the O.50 r 16(3) remedy, so the judge properly ordered the application to proceed exparte

Reasoning

The record showed counsel conceded the grounds of opposition were filed late and not served, and offered no explanation. Despite that lapse, he should have applied for leave under O.50 r 16(3) to argue the grounds; he did not. The trial judge pertinently observed that counsel did not take advantage of that remedy, so the order that the application proceed exparte was justified.

p. 3

Legal principles established

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  • A defective pleading can be cured only by amendment; a general denial or general statement of non-admission is not a sufficient traverse
  • An evasive, spurious pleading in the alternative discloses no reasonable defence for the purposes of O.6 r 13(1)(a)
  • A party who fails to file grounds of opposition in time must apply under O.50 r 16(3) for leave to argue them; failure to do so leaves the application to proceed exparte

Court orders

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  1. 1.Appeal dismissed with costs

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 Nairobi
H.C.C.C. No. 5212 of 1992
Jurisdiction invoked
First appeal to the Court of Appeal from the High Court under the Constitution and the Appellate Jurisdiction Act (appeal from ruling of the High Court)

Relief refused

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Setting aside the striking out of the defence and the judgment entered for the respondent

The defence was a mere general denial, evasive and inconsistent, and was intended to delay the fair trial of the suit

p. 3

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.

Under O.6 r 9(3) of the Civil Procedure Rules a general denial of the allegations in the plaint or a general statement of non-admission of those allegations is not a sufficient traverse of them.
p. 2Insufficiency of general denials
it is trite law that if a pleading is defective its defect can be cured only by an amendment of the same.
p. 2Amendment as the only cure for defective pleadings
such a spurious pleading in the alternative cannot give any merit to the defence and so also makes it one which discloses no reasonable defence for all purposes including that of O.6 r13(1)(a).
p. 2Alternative evasive pleading discloses no reasonable defence
In the end we do not find any merit in the appeal and dismiss it with costs.
p. 3Final orders - dismissal of appeal

Issues in the judgment

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minor

The decretal amount is stated inconsistently within the judgment as Shs.633,558.85 and Shs.633,558.50

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, "JOHN PAUL TITI vs MUMIAS SUGAR CO. LTD [1997] KECA 375 (KLR)", Case Analysis (1997). Civil Appeal No. 11 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/375/eng@1997-03-14

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