L K Mwanthi v F M Imanene & another [1982] KECA 29 (KLR)
The bottom line
#Kenya's Court of Appeal ruled a tenant could defend a rent claim, but only after paying Kshs 45,000 into court first.
What this practically means
#Executive summary
#Key legal issues
#Res judicata / sub judice under section 6 of the Civil Procedure Act
Section 6 did not bar the suit because the dispute before the Tribunal concerned different months' rent than that claimed in the suit.
The Tribunal dispute concerned rent for May to August 1979, while the summary judgment affidavit expressly claimed rent for October 1980 to July 1981. Despite the mismatch between the plaint and the affidavits, the court held the nature of the litigation showed the issues were not directly and substantially the same, so section 6 was not engaged; the court found it unnecessary to decide whether the section applied to Tribunals at all.
Competency of the summary judgment application despite defective affidavit
Omission of the Form 3A words 'I verily believe that there is no defence to this suit' did not void the application.
Relying on section 72 of the Interpretation and General Provisions Act (Cap 2), the court held a deviation from a prescribed form does not void a document unless it affects substance or is calculated to mislead. The sworn statements 'justly and truly' indebted verified the claim and implied belief in no defence, and the specific months claimed were clearly set out. Defects may be cured or supplemented by later affidavits.
Triable issue and conditional leave to defend
There was a triable issue as to whether the tenancy commenced on May 1 or September 1, 1979; conditional leave to defend, not summary judgment, was appropriate.
The plaint claimed ten months' rent from May 1, 1979, while the defendant asserted possession from September 1, 1979. The court found the summary procedure drastic and deserving of judicious restraint, but because the defendant merely traversed the allegation without condescending to particulars, leave was to be conditional on a deposit of Kshs 45,000.
Filing of supplementary record of appeal without leave
Permissible under rule 85(1)(k); it was not additional evidence.
Rule 85(1)(k) enables filing of documents necessary for the proper determination of the appeal without leave. The supplementary record merely augmented the original record with documents already in existence that were inadvertently omitted; it was right that all necessary documents be before the court.
Legal principles established
#- Section 6 of the Civil Procedure Act bars proceedings only where the matter in issue is directly and substantially the same as that in the previously instituted proceeding between the same parties.
- A supplementary record of appeal comprising documents already in existence but inadvertently omitted may be filed without leave under rule 85(1)(k) and does not constitute additional evidence.
- An affidavit in support of summary judgment need not strictly track Form No 3A where the deviation does not affect substance or mislead, by virtue of section 72 of the Interpretation and General Provisions Act; a sworn statement that the defendant is 'justly and truly' indebted verifies belief that there is no defence.
- Where the court is not satisfied with the bona fides of a defence and it is shadowy or dubious, conditional leave to defend is the appropriate course; the summary procedure is a drastic remedy.
Court orders
#- 1.Appeal allowed with costs
- 2.Decree of the High Court setting aside
- 3.Leave to defend granted conditionally, subject to the defendant depositing Kshs 45,000 in court by January 31, 1983
- 4.Costs of the application for summary judgment to be in the cause
- On appeal from
- High Court
- Not stated
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal under its Rules of Court (first appeal against entry of summary judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "L K Mwanthi v F M Imanene & another [1982] KECA 29 (KLR)", Case Analysis (1982). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1982/29/eng@1982-11-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.