Doge v Kenya Canners Ltd [1985] KECA 80 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that if a defendant's counterclaim raises real factual disputes, the case must go to full trial, not be decided by summary judgment.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether order XXXV rule 1 of the Civil Procedure Rules could be applied where the defence on record had not first been struck out under order VI rule 13
- 2.Whether the counterclaim was severable from the defence and whether it raised triable issues entitling the defendant to unconditional leave to defend
- 3.Whether summary judgment on the claim necessarily disposed of the counterclaim (the effect of Camille v Merali)
- 4.Whether the defendant's averments of a gift of the house and 90-100 acres, estoppel by conduct, and entitlement to demarcation and transfer raised arguable defences
- 5.Whether the learned judge was entitled to grant summary judgment for possession when the plaintiff's own pleadings and affidavit did not clearly state the terms on which the defendant occupied the house and land
Key legal issues
#Severability of the counterclaim from the defence on a summary judgment application
The counterclaim was not severable from the defence; its factual averments constituted triable issues and an arguable defence, and the respondent had filed no reply or defence to the counterclaim.
The court held the allegations in the counterclaim (that 90-100 acres and a house were set aside as a gift in consideration of fifteen years' service, giving rise to estoppel or entitlement to demarcation and transfer) would mean the appellant's possession was independent of his employment. Although better pleaded in the defence, the counterclaim raised factual conflicts determinable only by oral or other evidence. Rule 2(2) of order XXXV permits a defence protanto on the counterclaim, and one triable issue suffices for unconditional leave to defend.
Effect of summary judgment on the claim upon a pending counterclaim
Camille v Merali did not decide that summary judgment on a claim necessarily disposes of a counterclaim; the proper order where there is a plausible counterclaim is judgment on the claim with a stay of execution until trial of the counterclaim, and unconditional leave where the counterclaim is bona fide.
The court, per Hancox JA, held that Mr Le Pelley had misapprehended Newbold P's judgment in Camille v Merali, which turned on the lessee's claim for damages being a counterclaim and not a set-off. Relying on that case and the 1979 Rules of the Supreme Court commentary, and on rule 2(2) of order XXXV, the court distinguished between a plausible counterclaim (stay of execution) and a bona fide one (unconditional leave to defend).
Whether a prior striking out of the defence is a precondition to summary judgment
No. Order XXXV does not prescribe that there should be no defence, and rule 4 supposes a defence may have been filed; the defendant may still show leave to defend by affidavit or otherwise under rule 2(1).
Platt Ag JA held that although no authority was shown for the contention that the defence must first be struck out, the question is always whether the plaintiff shows there is no defence; the defence on record and other matters may be looked at, and if they do not persuade the court that a real issue remains, judgment will be given whether or not a defence exists. Striking out the defence is permissible but not a prerequisite.
Clarity of the plaintiff's own case as a condition for summary judgment
The judge could not be certain there was no reasonable defence because the plaintiff had not clearly stated on what terms the defendant occupied the house and land; the plaintiff should have been required to state its case clearly first.
Neither side could realistically explain how the defendant took up occupancy, why 90-100 acres were marked off, or why the company allowed renovation and installation of electricity at considerable cost. The plaint said the house was given 'in the course of his said employment' rather than as part of his terms of service, and the word 'gave' was apparently used in different senses by the parties. On such an unclear record, summary judgment for possession could not stand.
Legal principles established
#- A counterclaim arising out of the same subject matter as the action and connected with the defence may be treated as the defence for the purposes of an application for summary judgment; a plausible though not necessarily bona fide counterclaim justifies judgment on the claim with a stay of execution until the trial of the counterclaim, but a bona fide counterclaim calls for unconditional leave to defend.
- Where the facts alleged in a defence or counterclaim disclose one or more triable issues, summary judgment must be refused and the matter left to trial on oral or other evidence.
- It is not a precondition to summary judgment that a defence on record be first struck out under order VI rule 13; order XXXV may be applied whether or not there is a defence on record, since the defendant may rely on affidavits and other evidence under rule 2(1).
- Possession of property should not be equated with title; an estoppel might arise on the facts and such questions require trial.
Court orders
#- 1.Appeal allowed
- 2.Order of Gachuhi J granting summary judgment set aside
- 3.Case directed to proceed to hearing in the ordinary way
- 4.Counterclaim, if pending, to be decided at the same time as the claim
- 5.Costs of the appeal awarded to the appellant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Delivered the leading judgment. Held that the counterclaim was not severable from the defence and that the facts alleged in it constituted triable issues and an arguable defence; distinguished Camille v Merali on the effect of summary judgment on a counterclaim; would allow the appeal, set aside summary judgment, direct the case to proceed to trial with the counterclaim decided at the same time, and award costs to the appellant.
For these reasons I would allow the appeal, set aside the order of the judge granting summary judgment, and direct that the case should proceed to hearing in the ordinary way.p. 3
Wrote the judgment
Agreed with the judgment of Hancox JA. Emphasised that the counterclaim raised a triable issue entitling the appellant to unconditional leave to defend, that there was no defence to the counterclaim, and relied on authorities on amendment and on the court's inability at the interlocutory stage to assess the merits of the counterclaim.
The counterclaim does in my judgment entitle the appellant to defend to the extent of the counterclaim: rule 2(2) of order XXXV of the Civil Procedure Rules.p. 3
Wrote the judgment
Concurred in the result. Set out the pleadings at length, held that the counterclaim arose out of the same subject matter as the action and was properly treated as the real defence, that striking out a defence was not a sine qua non for summary judgment, and that the plaintiff should first have been required to state its case clearly; found there were clearly triable issues.
Consequently I would allow the appeal on ground 6 of the memorandum of appeal, namely that there were clearly triable issues. I agree with the terms proposed by Hancox JA.p. 7
- On appeal from
- High Court of Kenya
- not specified
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court (statutory appellate jurisdiction; no specific constitutional provision invoked in the judgment)
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.
For these reasons I would allow the appeal, set aside the order of the judge granting summary judgment, and direct that the case should proceed to hearing in the ordinary way.
It is clearly desirable that the counterclaim, if it is pending, should be decided at the same time as the claim. I would award costs to the appellant.
The facts there alleged, which I have set out, in my view constitute one or more triable issues and therefore an arguable defence.
the proper order where there is a plausible though not necessarily bona fide counterclaim is to give judgment on the claim and to stay execution until the trial of the counterclaim
Therefore, while there is no objection to the defence being struck out, it is not sine qua non.
In my opinion, the learned judge could not be certain whether or not there was a reasonable defence until the plaintiff put its case on a clear basis.
Consequently I would allow the appeal on ground 6 of the memorandum of appeal, namely that there were clearly triable issues. I agree with the terms proposed by Hancox JA.
Issues in the judgment
#The respondent's counsel is spelled inconsistently within the judgment ('Mr Le Pelley' and the deponent 'Mr Bachman' vs 'Mr Bachmann'), and the appellant's affidavit deponent is referred to as both 'Mr Bachman' (respondent's financial director) and 'Mr Doge' (the appellant), creating potential confusion in the record.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Doge v Kenya Canners Ltd [1985] KECA 80 (KLR)", Case Analysis (1985). Civil Appeal (not specified in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/80/eng@1985-04-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.