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Court of AppealDismissedCivil Appeal No. 11 of 1996

John Paul Titi v Mumias Sugar Co Ltd [1997] KECA 105 (KLR)

Court of Appeal
14 March 1997
1,434 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal threw out a defence that was just a blanket denial, confirming vague pleadings get struck out and vague litigants pay costs.

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 suit to recover Shs. 633,558.85 as money had and received or as advances. The respondent, applying under Order 6 rule 13 and the court's inherent powers, contended the defence disclosed no reasonable defence and was an abuse of process. The appellant, a former non-executive chairman, had by a letter of 24 February 1990 acknowledged a debt and authorised offsetting it against his emoluments, yet his defence wholly denied indebtedness while alternatively pleading possible liability on dishonoured cheques. The appellate court held that a defective pleading can be cured only by amendment, which the appellant never sought despite ample opportunity, and that under Order 6 rule 9(3) a general denial is not a sufficient traverse. The alternative plea was evasive and internally inconsistent; the court followed Raghbir Singh Chatte v National Bank of Kenya on spurious alternative pleadings. On procedure, the exparte hearing was justified because counsel conceded the grounds of opposition were filed late and unserved and failed to invoke Order 50 rule 16(3) for leave to argue them. The appeal was dismissed with costs, affirming the striking out of the defence and the entry of judgment for the respondent as prayed in the plaint.

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 to the respondent's claim
  2. 2.Whether a defective pleading founded on a bare general denial can be cured otherwise than by amendment
  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 triable issues

Holding

The defence was no more than a general denial; the defect could only be cured by amendment, which was never sought, and the alternative plea on dishonoured cheques was evasive and inconsistent with the total denial of indebtedness.

Reasoning

Paragraph 2 of the defence was a bare denial, insufficient under Order 6 rule 9(3). The appellant had ample time between the interpartes hearing date and the hearing date to apply to amend but did not. The alternative defence on dishonoured cheques was evasive since the appellant, having issued the cheques, knew whether they were honoured, and it contradicted his total denial of indebtedness. The trial Judge was therefore justified in striking out the defence as an abuse of process.

p. 3
02

Whether the exparte hearing of the application was erroneous

Holding

The exparte hearing was proper; counsel for the appellant conceded the grounds of opposition were filed late and unserved and did not invoke Order 50 rule 16(3) to seek leave to argue them.

Reasoning

The record showed Mr. Munyasia appeared at the hearing and conceded that the grounds of opposition had been filed late and not served, without explaining the lapse. He failed to take advantage of the remedy under Order 50 rule 16(3) to apply for leave to argue the grounds out of time. The trial Judge therefore rightly ordered that the application proceed exparte, and the appellant could not complain of a procedure he himself declined to invoke.

p. 3

Legal principles established

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  • A defective pleading can be cured only by amendment of that pleading; a general denial is not a sufficient traverse and does not disclose a reasonable defence.
  • A general denial or general statement of non-admission is not a sufficient traverse of the allegations in a plaint.
  • A spurious pleading in the alternative discloses no reasonable defence for the purposes of Order 6 rule 13(1)(a).
  • A party who fails to file grounds of opposition in time must apply under Order 50 rule 16(3) for leave to argue them; failure to do so leaves the application free 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 order striking out the defence and entering judgment for the respondent

The defence was a bare general denial, evasive and inconsistent, intended to delay the fair trial of the suit; no triable issues were disclosed

p. 3

Costs

Appeal dismissed with cost (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.

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 a defective pleading
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 under Order 6 rule 9(3)
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 0.6 r13 (1)(a).
p. 3Alternative evasive pleadings disclose no reasonable defence
In the end we do not find any merit in the appeal and dismiss it with cost.
p. 3Final orders - dismissal of the 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 v Mumias Sugar Co Ltd [1997] KECA 105 (KLR)", Case Analysis (1997). Civil Appeal No. 11 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/105/eng@1997-03-14

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