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MagistrateDismissedNot stated in the judgment (application dated 25th November 2025)

Gulf Energy Holdings Limited v Khalifa (Civil Suit E002 of 2025) [2026] KEMC 56 (KLR)

Magistrates' Court (Resident Magistrate's Court)
25 February 2026
1,375 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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What this practically means

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Executive summary

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The plaintiff/applicant moved the Lamu Law Court by a Notice of Motion dated 25th November 2025 under Order 2 Rule 15 (c)(d) of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, seeking to strike out the defendant's statement of defence and to have judgment entered as prayed in the plaint, with costs to the defendant. The applicant argued that the defence consisted of mere denials, disclosed no reasonable defence, would prejudice or delay fair trial, and had been filed out of time. The defendant, through the replying affidavit of Aboud Said Khalifa, opposed the application as an abuse of process, contending that striking out a defence is a draconian measure and that the defence was filed within time. The Resident Magistrate, F.M. Mulama, framed two issues: whether the application should be allowed, and costs. On timeliness, the court found two services of the claim and rejected the first (email) service for want of proof that the email belonged to the defendant, accepting the acknowledged WhatsApp service of 6/11/2025; appearance and defence were therefore filed within time. On the merits, although paragraphs 5-8 of the defence were mere denials, paragraph 4 asserted fulfilment of contractual obligations, raising a bona fide triable issue requiring evidence. Applying Postal Corporation of Kenya v Inamdar, Olympic Escort International, D.T. Dobie, Blue Shield Insurance and Michael Kalani Muatha, the court held striking out would be a drastic, draconian remedy. The application was dismissed with costs to the defendant, such costs to abide the outcome of the suit.

Questions the Court framed

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

  1. 1.Whether the application dated 25th November 2025 should be allowed.
  2. 2.Whether costs should be awarded and to who.

Key legal issues

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01

Whether the defence was filed out of time

Holding

The defence was filed within time; the effective service was the second service of 6/11/2025 via WhatsApp, appearance and defence followed within the prescribed period.

Reasoning

The court examined the CTS and found two instances of service. The first service by email on 27/10/2025 failed because there was no proof the email belonged to the defendant, which explained the second service by WhatsApp that was duly acknowledged with the phone number proved by an mpesa message. Counting from 6/11/2025, appearance (13/11/2025) and defence (25/11/2025) were filed within time, so the assertion that the defence was out of time was dismissed.

p. 2
02

Whether the defence discloses a triable issue or should be struck out under Order 2 Rule 15

Holding

The defence raises a bona fide triable issue at paragraph 4 (performance of contractual obligations) and the application to strike out was dismissed.

Reasoning

Although paragraphs 5, 6, 7 and 8 of the defence were mere denials, paragraph 4 asserted the defendant fulfilled all contractual obligations, which the plaintiff disputes. Whether the defendant performed is a matter for evidence, examination and cross-examination. Applying settled authority that one bona fide triable issue entitles a defendant to defend, striking out would be a drastic, draconian remedy unjustified here.

p. 2
03

Whether costs should be awarded and to whom

Holding

Costs follow the event; the defendant, as the successful party, was awarded the costs of the application, to abide the outcome of the suit.

Reasoning

The court restated the principle that costs follow the event and are meant to compensate the successful party rather than penalize the losing party. Having opposed and succeeded in defeating the striking-out application, the defendant was awarded costs, with the qualification that such costs abide the outcome of the main suit.

p. 3

Legal principles established

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  • If a defence raises even one bona fide triable issue, the defendant must be given leave to defend.
  • A triable issue need not be one the defendant would ultimately succeed on; it need only be bona fide.
  • A suit should not be summarily dismissed unless it is hopeless, plainly disclosing no reasonable cause of action and incurable by amendment.
  • Striking out pleadings is a drastic remedy reserved for pleadings that are complete shams.

Court orders

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  1. 1.The application dated 25th November 2025 is dismissed with costs to the Defendant/Respondent.
  2. 2.The costs shall abide the outcome of the suit.

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Order 2 Rule 15 (c)(d) of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act (Cap 21)

Relief refused

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Striking out the statement of defence and entering judgment for the plaintiff as prayed in the plaint

The defence raises a bona fide triable issue at paragraph 4 and striking out would be a draconian measure

p. 3

Costs of the application borne by the defendant

The defendant was the successful party in opposing the application

p. 3

Costs

Application dismissed with costs to the Defendant/Respondent; costs to abide the outcome of the suit.

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.

The application dated 25th November 2025 is not merited and it is hereby dismissed with costs to the Defendant/Respondent.
p. 3Final orders - dismissal of application
The costs shall abide the outcome of the suit.
p. 3Final orders - costs
if the defence filed by a defendant raises even one bona fide triable issue, then the defendant must be given leave to defend.
p. 3Triable issues - striking out pleadings
striking out of pleadings is a drastic remedy that should only be resorted to where a pleading is a complete sham
p. 3Drastic nature of striking out

Issues in the judgment

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minor

The parties' full names are not stated in the judgment; only the defendant's deponent (Aboud Said Khalifa) is named, and the title of the main suit is not disclosed.

minor

The case number of the main suit is not stated anywhere in the judgment.

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, "Gulf Energy Holdings Limited v Khalifa (Civil Suit E002 of 2025) [2026] KEMC 56 (KLR)", Case Analysis (2026). Not stated in the judgment (application dated 25th November 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/56/eng@2026-02-25

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