Gulf Energy Holdings Limited v Khalifa (Civil Suit E002 of 2025) [2026] KEMC 56 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application dated 25th November 2025 should be allowed.
- 2.Whether costs should be awarded and to who.
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.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
Costs of the application borne by the defendant
The defendant was the successful party in opposing the application
Costs
Application dismissed with costs to the Defendant/Respondent; costs to abide the outcome of the suit.
Quotable passages
#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.
The costs shall abide the outcome of the suit.
if the defence filed by a defendant raises even one bona fide triable issue, then the defendant must be given leave to defend.
striking out of pleadings is a drastic remedy that should only be resorted to where a pleading is a complete sham
Issues in the judgment
#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.
The case number of the main suit is not stated anywhere in the judgment.
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.