GICHIEM CONSTRUCTION COMPANY vs AMALGAMATED TRADES & SERVICES [1983] KECA 120 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that defendants with a genuinely disputed claim get their day in court, not instant judgment against them.
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 respondent raised triable issues or a fairly arguable defence entitling it to leave to defend
- 2.Whether the letter of October 13, 1982 conclusively established the quantum meruit agreement
- 3.Whether the leave to defend should have been conditional
- 4.Whether the proper order is dismissal of the summary judgment application or refusal of summary judgment with leave to defend
Key legal issues
#Principles governing summary judgment applications
A plaintiff with a liquidated claim to which there is clearly no good defence is entitled to quick summary judgment; but if the judge considers there is any reasonable ground of defence, the defendant is entitled to leave to defend, normally supported by affidavit evidence.
The court adopted the locus classicus in East Africa, Zola v Ralli Bros, quoting Sir Charles Newbold on the purpose of the summary judgment procedure. The defendant should place evidence by way of affidavit showing some reasonable ground of defence, per the terms of the rule, and the court should scrutinise defences carefully where bona fides are doubted.
Whether the respondent raised triable issues
Yes - the existence of the alleged agreement, the basis of the quantum meruit, the number of blocks painted, and the basis for the Kshs 14,000 payment were all in dispute on conflicting affidavits.
Both judges found genuine conflicts of fact: the respondent denied any contract and said only two blocks were painted at Kshs 14,000 each; the basis of the Kshs 14,000 payment and the cheque for Kshs 49,287.20 was contested. In an oral-agreement case where each party alleges different terms, summary judgment is dangerous.
Whether leave to defend should be conditional
Conditional leave is not a matter of course; it requires evidence of bad faith, suspicious conduct or a sham defence, none of which was shown.
The court acknowledged a recent hardening of judicial attitudes, with courts more readily imposing payment into court or security due to inflation and delay benefiting debtors, but held the appellant had not established bad faith or sham character in this defence.
Form of the order where triable issues exist
The application should be refused with an appropriate order as to costs, not dismissed, since dismissal finally disposes of the application and precludes consequential orders.
Following Trikam Maganlal Gohil v John Waweru Wamai and Franz Haas v EN Wainaina, the court held that a dismissal is a final disposal leaving the application no longer alive, so leave to defend and costs orders could not be made; the correct course is refusal of summary judgment.
Legal principles established
#- This Court on appeal will examine the decision of the judge in the court below together with the material before him to determine whether there really was an arguable defence or triable issues.
- Where triable issues are found to exist, the proper order is to refuse summary judgment (not to dismiss the application) so that consequential orders as to leave to defend and costs can be made.
- Where there is a dispute on the facts, a court on appeal will be reluctant to disturb the judge's view that there is a triable issue.
- Conflicting versions of an oral agreement automatically raise triable issues, making summary judgment dangerous.
Court orders
#- 1.Dismissal of the substantive appeal against Bhandari J's order
- 2.Variation of the High Court order so as to refuse the application for summary judgment rather than dismiss it
- 3.Leave to defend the suit granted unconditionally
- 4.Costs of the application reserved to be dealt with at the trial of the action
- 5.Costs of the appeal to the respondent in any event
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Reviewed the principles governing summary judgment applications, held that the respondent had raised triable issues as to the existence and basis of the quantum meruit agreement and the basis of the Kshs 14,000 payment, and concluded that the proper order was to refuse summary judgment with leave to defend rather than dismiss the application outright.
For these reasons I should not wish to disturb the Judge’s finding that triable issues of fact issues of fact have been raised by the respondentp. 3
Wrote the judgment
Agreed with Hancox JA's draft judgment, adding that the failure of Bhandari J to identify the triable issues was not fatal, that conflicting versions of an oral agreement automatically raise triable issues, and that conditional leave to defend requires evidence of bad faith or a sham defence which was absent here.
in a case involving an oral agreement like this one, where each party alleges its own terms and conditions of the oral agreement and one party’s version differs from that one of the other it is dangerous to give a summary judgmentp. 4
- On appeal from
- High Court of Kenya at Mombasa
- Jurisdiction invoked
- First appeal to the Court of Appeal against a High Court ruling granting leave to defend (Order XXXV rule 1, Civil Procedure Rules)
Relief refused
#Conditional leave to defend (as urged by the appellant in the alternative)
No evidence of bad faith, suspicious conduct or a sham defence on the part of the defendant was shown.
Costs
Costs of the application reserved to be dealt with at the trial of the action; costs of the appeal to the respondent in any event.
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.
This court on appeal will therefore examine the decision of the judge in the court below together with the material before him to see if there really was an arguable defence or triable issues raised.
The proper order is to refuse summary judgment with an appropriate order as to costs.
Accordingly, in this case, I would dismiss the substantive appeal against Bhandari J’s order, but I would vary that order so as to refuse the application for summary judgment and I would order that costs of the application be reserved to be dealt with at the trial of the action. The respondent having succeeded before this court I would order that the costs of this appeal be the respondent’s in any event.
Leave to defend must be given unless it is clear that there is no real substantial question to be tried; that there is no dispute as to facts or law which raises a reasonable doubt that the plaintiff is entitled to judgment.
Issues in the judgment
#Header to Chesoni Ag JA's judgment misprinted as 'JUDGMENT OF THE HANCOIX, J A' at the head of the first judgment and the quantum figure appears inconsistently (Kshs 4,763.50 in Chesoni JA's narration versus Kshs 54,763.50 in Hancox JA's narration of the same agreement).
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Baldev Raj Aggarwal & 2 others v Kamal Kishore Aggarwal [1988] KECA 115 (KLR)[1988] KECA 115 (KLR)27 Oct 1988followed
Cite this brief
#Cite this brief
Caselaw, "GICHIEM CONSTRUCTION COMPANY vs AMALGAMATED TRADES & SERVICES [1983] KECA 120 (KLR)", Case Analysis (1983). Civil Appeal No 17 of 1983. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1983/120/eng@1983-07-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.