Gulf Energy Holdings Limited v Khalifa (Civil Suit E002 of 2025) [2026] KEMC 56 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the defence was filed out of time
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.
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.
Whether the defence discloses a triable issue or should be struck out under Order 2 Rule 15
The defence raises a bona fide triable issue at paragraph 4 (performance of contractual obligations) and the application to strike out was dismissed.
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.
Whether costs should be awarded and to whom
Costs follow the event; the defendant, as the successful party, was awarded the costs of the application, to abide the outcome of the suit.
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.
Legal principles established
#- 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
#- 1.The application dated 25th November 2025 is dismissed with costs to the Defendant/Respondent.
- 2.The costs shall abide the outcome of the suit.
- 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)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.