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Court of AppealAllowedCivil Appeal (from High Court Civil Suit No. 648 of 1985)

Gatukuyu Coffee Growers Co-operative Society Ltd vNatgil Enterprises Limited [1988] KECA 16 (KLR)

Court of Appeal of Kenya
16 December 1988
1,566 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that summary judgment cannot be granted where a genuine dispute exists, allowing the defendant company a full trial.

What this practically means

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Executive summary

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The respondent, Natgil Enterprises Ltd, sued the appellant, Gatukuyu Coffee Growers Co-operative Society Ltd, in High Court Civil Suit No. 648 of 1985 for Kshs 933,750, relying on a letter of August 15, 1984 in which the appellant confirmed revocation of an order earlier given to Ashford Laboratories (K) Ltd and its re-grant to the respondent at a reduced price. The respondent applied for summary judgment under Order XXXV rule 1 of the Civil Procedure Rules. In its defence and affidavit, the appellant alleged that the August 15 letter was written by mistake induced by misrepresentation - that Ashford Laboratories had been sold to the respondent and that no other person would claim the fungicide. Schofield J found the misrepresentation issue immaterial and entered summary judgment for the respondent. On appeal, the Court of Appeal (Nyarangi, Masime JJA and Gicheru Ag JA) applied Mugambi v Gatururu, holding that the summary procedure must be exercised with great care and only where the plaintiff's entitlement is plain and obvious without any doubt. The trial judge's own incertitude on the misrepresentation issue showed the case was not plain and obvious; the misrepresentation was serious and genuine, going to the very contract on which the claim was founded, and therefore constituted a prima facie triable issue. The appeal was allowed with costs, the High Court judgment and costs were set aside, the appellant was granted unconditional leave to defend, costs of the summary judgment application were made costs in the cause, and the sum of Kshs 1,065,262.60 paid under the bond was ordered repaid to the appellant without interest.

Questions the Court framed

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

  1. 1.Whether the issue of misrepresentation raised in the appellant's defence disclosed a triable issue precluding summary judgment
  2. 2.Whether the learned judge rightly applied the summary procedure under Order XXXV rule 1

Key legal issues

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01

Whether misrepresentation alleged in a defence raised a triable issue for purposes of Order XXXV summary judgment

Holding

Yes; the issue of misrepresentation was serious and genuine as it went to the very contract relied on by the respondent, so summary judgment should not have been entered and the appellant was entitled to unconditional leave to defend.

Reasoning

The Court of Appeal, citing Mugambi v Gatururu, held that the summary procedure is to be exercised with great care and only in plain and obvious cases. The trial judge's own observation that it was 'difficult to know' how the misrepresentations could prejudice the appellant betrayed incertitude; where the court is not plainly and obviously satisfied, leave to defend must be granted. The misrepresentation, if proved, went to the root of the contract on which the claim was based.

p. 3

Legal principles established

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  • Summary judgment may only be granted where the plaintiff's case is plain and obvious and the defendant is not raising a serious and genuine triable issue; where a prima facie triable issue exists, the defendant is entitled to unconditional leave to defend.
  • A triable issue affecting the very contract on which the claim is founded defeats the summary procedure.

Court orders

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  1. 1.Appeal allowed with costs
  2. 2.Judgment and costs entered in favour of the respondent by the High Court set aside
  3. 3.Appellant granted unconditional leave to defend the suit
  4. 4.Costs occasioned by the respondent in the court below pursuant to the application for summary judgment to be in the cause
  5. 5.The sum of Kshs 1,065,262.60 paid to the respondent by the appellant, secured by a bond, to be repaid to the appellant without interest

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
Civil Suit No. 648 of 1985
Jurisdiction invoked
First appeal to the Court of Appeal from the High Court summary judgment entered under Order XXXV rule 1 of the Civil Procedure Rules

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 summary procedure is to be exercised with great care.
p. 3Summary judgment - standard of care
This therefore was a prima facie triable issue and the learned trial judge ought to have allowed it to go to trial.
p. 3Triable issue
The appellant shall have unconditional leave to defend the suit filed against it by the respondent as is mentioned above.
p. 4Final orders
The sum of Kshs 1,065.262.60 paid to the respondent by the appellant and secured by a bond paid for by the respondent shall be paid back to the appellant without interest.
p. 4Final orders - repayment

Issues in the judgment

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minor

Typographical errors in the copy of the judgment, e.g. 'Kshs 1,065.262.60' and 'ssummary'

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, "Gatukuyu Coffee Growers Co-operative Society Ltd vNatgil Enterprises Limited [1988] KECA 16 (KLR)", Case Analysis (1988). Civil Appeal (from High Court Civil Suit No. 648 of 1985). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1988/16/eng@1988-12-16

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