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Court of AppealPartially AllowedCivil Appeal No. 31 of 1984

GURBAKSH SINGH & SONS LIMITED V NJIRI EMPORIUM LTD [1985] KECA 133 (KLR)

Court of Appeal
17 December 1985
5,134 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that landlords can use fast-track summary judgment to recover precisely quantified repair costs from tenants who breach their leases.

What this practically means

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Executive summary

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The landlord let its Lavington house to the tenant under an agreement of August 30, 1977 at Kshs 8,000 per month, quarterly in advance. The tenant vacated at the end of April 1980 without notice, and by an agreement of June 6, 1980 undertook to hand over the premises in good repair and redecorated. The landlord sued for Kshs 28,925 (house repairs, extras and surveyor's fees) and Kshs 15,140.90 (garden restoration), annexing the surveyor's and master gardener's reports to the plaint. It then moved for summary judgment under Order 35 rule 1(a). The tenant raised a preliminary objection that the claims were not liquidated demands, which Aganyanya J upheld on October 25, 1983, dismissing the motion with costs payable forthwith and granting leave to appeal. The Court of Appeal (Kneller JA, Platt and Gachuhi Ag JJA) allowed the appeal. Tracing the law from the indebitatus counts in Lagos v Grunwaldt through Ecksteen v Kutosi, Baker v Barclays Bank and Kenya Flamingo Airways, the court held that the landlord's demands were for specified, exact, quantified sums embracing goods sold and delivered, work done and expert fees, and so were liquidated demands within Order 35 rule 1(a). The concept of a liquidated demand has broadened to embrace certain claims in tort. The judge erred in taking into account the written statement of defence and matters outside the preliminary objection, which could not affect whether the claims were liquidated. Platt Ag JA, concurring separately, endorsed the Flamingo Airways extension as governing the case. The ruling was reversed, the preliminary objection overruled with costs, and the landlord's motion remitted to the High Court to be heard with due despatch.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned judge erred in law when he held the landlord's claims were not liquidated demands
  2. 2.Whether the landlord's quantified claims for the cost of remedying the tenant's breaches of covenant were debts or liquidated demands within Order 35 rule 1(a) of the Civil Procedure Rules
  3. 3.Whether the judge was entitled to take into account matters outside the preliminary objection, including the written statement of defence

Key legal issues

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01

Whether quantified claims for remedial expenses following breach of repairing covenants are liquidated demands for summary judgment purposes

Holding

They are liquidated demands; the judge erred in holding otherwise

Reasoning

Drawing on Lagos v Grunwaldt, Ecksteen v Kutosi, Baker v Barclays Bank and Kenya Flamingo Airways, the court traced the concept of liquidated demand from indebitatus counts through quantum meruit to quantified claims in tort. Where a plaintiff has quantified sums spent to cure a defendant's breach - goods, work done and expert fees - the claims are for specified, exact sums and fall within Order 35 rule 1(a), irrespective of defence objections to the amounts.

p. 5
02

Whether the High Court judge could consider matters outside the preliminary objection, including the defence

Holding

He could not; on a preliminary objection of this kind the only relevant facts are those in the plaintiff's claims and supporting documents

Reasoning

A preliminary objection asserts that even if everything in the plaint is conceded, the claim will not lie in law. The judge therefore had to ask whether the claims as pleaded were liquidated demands. In taking into account the detailed defence and the anticipated investigation of the experts' figures, he strayed beyond the objection and misdirected himself.

p. 7

Legal principles established

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  • A quantified claim for money spent by a plaintiff to remedy a defendant's breach, covering goods sold and delivered, work done and expert fees, may constitute a debt or liquidated demand under Order 35 rule 1(a) even though the sums are disputed by the defence
  • The concept of a liquidated demand has broadened and now embraces certain claims in tort, including quantified special damages for specific and direct loss
  • Whether a claim is a liquidated demand is determined on the plaintiff's claim and supporting documents, and the contents of the written statement of defence do not affect that issue

Court orders

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  1. 1.Appeal allowed with costs
  2. 2.Ruling of the learned judge of the High Court reversed
  3. 3.Tenant's preliminary objection overruled with costs
  4. 4.Landlord's motion remitted to the High Court to hear with due despatch

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Delivered the leading judgment of the court: the High Court judge erred in holding that the landlord's quantified claims for remedial expenses were not liquidated demands; the appeal was allowed, the ruling reversed, the preliminary objection overruled and the motion remitted to the High Court.

The result is that in my view the appeal should be allowed with costs, the ruling of the learned judge reversed, the tenant's preliminary objection over-ruled with costs and the landlord's motion remitted to the High Court to hear with due despatch.p. 6
PL
PlattAg JA
concurring

Wrote the judgment

Agreed with Kneller JA and added a separate opinion tracing the evolution of the concept of a liquidated demand, holding that the Flamingo Airways extension to quantified special damages in tort was satisfactory and governed the present claims.

It seems to me therefore that the extension in the Flamingo Airways case is a satisfactory extension of the principle and covers the present case. I would allow the appeal and I agree with the orders proposed by Kneller JA.p. 8
GA
GachuhiAg JA
majority
On appeal from
High Court at Nairobi
Civil Case No 2317 of 1983
Jurisdiction invoked
First appeal to the Court of Appeal under the applicable appellate statute (not expressly stated in the judgment); appeal against a High Court ruling dismissing an application for summary judgment

Relief refused

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Tenant's request that the appeal be dismissed with costs

The court found the landlord's quantified claims were liquidated demands and the judge erred in law

p. 2

Costs

Appeal allowed with costs to the landlord; the tenant's preliminary objection overruled with costs to the landlord

Quotable passages

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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 result is that in my view the appeal should be allowed with costs, the ruling of the learned judge reversed, the tenant's preliminary objection over-ruled with costs and the landlord's motion remitted to the High Court to hear with due despatch.
p. 6Final orders of the court
The demands were for specified sums, exact ones, quantified ones. They embraced goods sold and delivered to the place, the work done with them there and the fees of the experts.
p. 5Definition and application of a liquidated demand
But the concept has broadened in recent years and embraces certain claims in tort.
p. 7Expansion of the liquidated demand concept to tort claims
Special damages arising out of tort for specific and direct loss may well be liquidated demands.
p. 7Quantified special damages as liquidated demands
The contents of the written statement of defence did not affect the issue of whether or not the claims were liquidated demands.
p. 6Scope of inquiry on a preliminary objection
It seems to me therefore that the extension in the Flamingo Airways case is a satisfactory extension of the principle and covers the present case.
p. 8Concurring opinion of Platt Ag JA endorsing the Flamingo Airways extension

Issues in the judgment

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minor

Lease term stated as fifteen months but the dates given (September 13, 1977 to December 14, 1980) span a longer period

minor

The tenant's pleaded obligations and the tenancy period appear inconsistently described - the agreement was made August 30, 1977 but rent was to begin September 15, 1977 while the tenancy started September 13, 1977

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "GURBAKSH SINGH & SONS LIMITED V NJIRI EMPORIUM LTD [1985] KECA 133 (KLR)", Case Analysis (1985). Civil Appeal No. 31 of 1984. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/133/eng@1985-12-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.