Kalka Flowers Limited v Equity Bank of Kenya [2017] KEELC 3056 (KLR)
The bottom line
#Kalka Flowers lost its land suit against Equity Bank after filing duplicate cases and ignoring a strike-out application, which the court allowed unopposed.
What this practically means
#Executive summary
#Key legal issues
#Abuse of court process by filing two suits over the same subject matter
The court allowed the unopposed application to strike out the suit, relying on Justice Nyamweya's earlier finding of abuse of process despite the consolidation of the two suits.
The court noted the plaintiff filed no replying affidavit or grounds of opposition and neither of its two law firms attended the hearing. Earlier, Justice Nyamweya had found the filing of two suits over the same cause of action to be an abuse of process but had consolidated them because triable issues existed. On this unopposed application the judge declined to delve into the merits and allowed the application in its entirety.
Effect of an unopposed application and unrebutted allegations
Where a respondent files no replying affidavit and makes no attempt to answer allegations, the allegations remain unrebutted and the unopposed application may be allowed.
Counsel relied on Mohammed & Anor v Haidara, where the appeal was allowed for lack of evidence from the respondent, and Spry V-P's holding that unrebutted allegations stand. The court observed that the plaintiff's advocates were served but failed to attend, and one firm, though intending to cease acting, remained on record without instituting proceedings to cease acting.
Legal principles established
#- Once two or more suits are consolidated, they are deemed one suit.
- Allegations unrebutted by a replying affidavit remain unrebutted.
Court orders
#- 1.Civil Suit No. 60 of 2014, Kalka Flowers Limited v Equity Bank Limited, is struck out
- 2.Costs of the suit and of the application awarded to the Defendant
- Jurisdiction invoked
- Original civil jurisdiction under Order 2 Rule 15(1)(a)(b) and (d) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kalka Flowers Limited v Equity Bank of Kenya [2017] KEELC 3056 (KLR)", Case Analysis (2017). Civil Suit No. 60 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3056/eng@2017-04-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.