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Court of AppealDismissedCivil Appeal 187 of 1994

ACHKAY HOLDINGS LTD v N. M. SHAH t/a BRAIDWOOD COLLEGE [1995] KECA 74 (KLR)

Court of Appeal of Kenya
6 April 1995
JGJ. M. GachuhiAAA. M. AkiwumiPhilip Kiptoo TunoiP. K. Tunoi
814 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that a defence can only be struck out without trial when it is obviously hopeless on its face; otherwise, the case must go to full trial.

What this practically means

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Executive summary

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This was an appeal against a ruling of the High Court (Shah, J) dated 26th October 1994, refusing the appellant landlord's application under Order VI Rule 13 of the Civil Procedure Rules to strike out the respondent tenant's defence and enter judgment, on the grounds that the defence was dishonest, frivolous and an abuse of process. The dispute concerned Oshwal House on Tom Mboya Street, Nairobi. The respondent had written to the previous proprietor on 19th June 1991 agreeing to pay progressively increased rent and to hand over vacant possession within six months of any sale of the premises. The appellant was registered as proprietor on 10th January 1994 and gave six months' notice to vacate, though that notice letter was omitted from the record of appeal. The respondent pleaded reliance on a five-year lease with the previous proprietor. Before the High Court, the appellant argued that untraversed allegations were deemed admitted, making the defence vexatious; the judge declined, finding triable issues. On appeal, Mrs Rawal for the appellant contended the judge erred in holding the 1991 letter did not enure to the appellant's benefit for want of privity of contract. The Court of Appeal, in a judgment delivered by the court (Gachuhi, Akiwumi and Tunoi, JJA), reaffirmed that the summary procedure applies only in plain and obvious cases. The 1991 letter required serious investigation and construction, and its status as a lease could not be determined without evidence. The court affirmed the decision below and dismissed the appeal with costs on 6th April 1995.

Questions the Court framed

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

  1. 1.Whether the High Court erred in refusing to strike out the respondent's defence and enter judgment under Order VI Rule 13 of the Civil Procedure Rules
  2. 2.Whether the commitments in the respondent's letter of 19th June 1991 enured to the benefit of the appellant, there being no privity of contract
  3. 3.Whether the defence raised triable issues rendering the summary procedure inappropriate

Key legal issues

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01

Scope of the summary procedure under Order VI Rule 13

Holding

It is available only in plain and obvious cases; where serious unresolved issues exist, the defence must go to trial.

Reasoning

The court held the procedure applies only where a defence is on its face obviously unsustainable. Here the letter of 19th June 1991 required serious investigation and construction, and the judge lacked the benefit of oral or documentary evidence to determine whether it constituted a lease. The refusal to strike out was therefore unassailable and the appellate court would not interfere.

p. 2
02

Privity of contract and benefit of the 1991 letter

Holding

Whether the 1991 letter created a lease or obligations enforceable by the appellant could not be determined on the pleadings alone; it was a triable issue.

Reasoning

The appellant argued that the commitments in the respondent's letter of 19th June 1991 enured to its benefit as purchaser, notwithstanding the absence of privity between it and the respondent. The court held the letter required serious investigation and construction and could not be ruled on without evidence, so the judge rightly declined to determine the point at the interlocutory stage.

Legal principles established

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  • The summary striking-out procedure under Order VI Rule 13 applies only in plain and obvious cases where a cause of action or defence is obviously unsustainable on its face.
  • Where pleadings disclose serious unresolved issues requiring evidence, the defence cannot be struck out and the matter must proceed to trial.

Court orders

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  1. 1.Appeal dismissed with costs

The bench

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

JG
majority
AA
majority
Philip Kiptoo Tunoi
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 2190 of 1994
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over decisions of the High Court

Relief refused

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Reversal of the High Court ruling striking out the defence and entering judgment for the appellant

The pleadings disclosed serious unresolved triable issues; the status of the 19th June 1991 letter required evidence and could not be resolved on the summary procedure

p. 2

Costs

Appeal dismissed with costs (appellant to pay the respondent's costs of the appeal)

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 under Order 6 rule 13 can only be adopted when it can be clearly seen that a cause of action or defence is on the face of it obviously unsustainable and should be applied only in plain and obvious cases.
p. 2Summary striking-out procedure - plain and obvious cases only
The letter of 19th June, 1991 requires serious investigation and construction.
Triable issue - construction of the 1991 letter
On examination and consideration of the pleadings we are satisfied that, in the circumstances, the decision of the learned judge was fully justified and we do not interfere with it. We would dismiss this appeal with costs.
p. 2Final orders - appeal dismissed

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, "ACHKAY HOLDINGS LTD v N. M. SHAH t/a BRAIDWOOD COLLEGE [1995] KECA 74 (KLR)", Case Analysis (1995). Civil Appeal 187 of 1994. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1995/74/eng@1995-04-06

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