Eastafrica Packaging Industries Limited v Zoeb Alibhai
The bottom line
#Kenya's Court of Appeal ruled that summary judgment is only for hopeless defences; if a defendant raises a genuine dispute, they get their day in court.
What this practically means
#Executive summary
#Key legal issues
#Rejection of further affidavits filed with leave
The trial judge erred in rejecting the further affidavits because he had himself granted leave on 8 May 1995 for both parties to file and exchange further affidavits.
The consent order of 8 May 1995 expressly permitted both parties to file and exchange further affidavits before the hearing on 16 May 1995. Both parties complied. The judge could not thereafter treat the affidavits as filed without leave; counsel failed to draw his attention to his own order. All three judges of appeal treated the exclusion as a clear error and took the affidavits into account in determining the appeal.
Sufficiency of disclosure of sources in an affidavit on information and belief
Identifying the sources as the company's sales staff and customers was sufficient compliance with the proviso to Order 18 rule 3; striking out paragraph 7 of Small's affidavit was erroneous.
The proviso to Order 18 rule 3 permits statements of information and belief in interlocutory proceedings provided the source and grounds of belief are shown. Naming individuals is desirable but not necessary; the source was disclosed. If the respondent wanted more detail, the proper course was to apply for cross-examination of the deponent. Striking out the paragraph destroyed the anchor of the appellant's case and took too technical a view.
Claim for retirement benefits against employer or trustees
Whether the respondent's claim for benefits under the Staff Retirement Benefits Scheme lies against the trustees rather than the employer is a triable issue that cannot be determined summarily.
The point was pleaded in the defence, deponed to in Small's affidavit, and argued before the trial judge, yet the lengthy ruling made no reference to it. The Trust Deed and Rules required careful interpretation. If decided in the appellant's favour it would cover a substantial part of the claim. Bosire Ag JA declined to express even a tentative view, since doing so might trespass on the trial court's jurisdiction.
Whether the respondent was still in employment when purportedly summarily dismissed
Whether the employment ended on 15/16 February 1995 or on 28 February 1995, and whether summary dismissal during terminal leave was possible, were arguable issues requiring oral evidence.
The resignation letter requested forfeiture of earned leave to shorten the notice period, but the acceptance letter was silent on forfeiture and paid full February salary. The parties' intentions were not explicit in the documents; matters were discussed that were never reduced to writing. Bosire Ag JA applied Nicholls LJ's analysis in Delaney v Staples distinguishing pay in lieu of notice as damages from wages under a subsisting contract, and held the matters required investigation at trial.
Award of publication expenses under the summary procedure
Summary judgment for Shs 23,267.25 as publication expenses was improper because the defamation claim on which it was pegged had been abandoned and liability was never established or admitted.
The claim was tied to the abandoned defamation claim; without proof of liability the amount was of doubtful recoverability. A defamation claim is not suitable for summary disposal under Order XXXV rule 1. The issue whether the expenses could be pursued independently and justified could not be determined without oral evidence. All three judges allowed this ground.
Whether the defence raised triable issues entitling unconditional leave to defend
The defences that the retirement benefits claim did not lie against the appellant and that the public notice was not defamatory were triable issues; the appellant should have been given unconditional leave to defend.
The summary procedure under Order XXXV applies only in plain and obvious cases where the defence is a sham. Here the documents did not resolve the parties' intentions on termination, the trustees point required interpretation of the trust deed, and the publication expenses claim required proof of defamation liability. Once bona fide issues were identified, the court should not resolve them on affidavit evidence.
Legal principles established
#- Where a court has granted leave to file further affidavits, it cannot later reject those affidavits on the ground that they were filed without leave.
- In interlocutory proceedings, an affidavit deposing to information and belief need not name individual sources; identifying the class of persons (e.g. staff and customers) suffices, and the remedy for dissatisfaction is cross-examination of the deponent.
- Failure to disclose sources of information with particularity weakens the probative value of the information but does not render the affidavit paragraph defective.
- A claim for defamation, or special damages pegged to defamation, is not relief that can be dealt with summarily under Order XXXV rule 1 in the absence of proof of or admission of liability.
- Where a bona fide triable issue is raised, the defendant must be given unconditional leave to defend; summary judgment is reserved for sham defences.
- Once a bona fide issue has been identified, the court should refrain from resolving it on affidavit evidence.
- The burden on a plaintiff seeking summary judgment is heavier than that on a defendant to disclose a good defence; a defendant need only show an arguable defence.
Court orders
#- 1.Appeal allowed.
- 2.Judgment and decree of the superior court set aside.
- 3.Appellant's defence reinstated/restored.
- 4.Appellant granted unconditional leave to enter and defend the suit.
- 5.Respondent's application for summary judgment dismissed with costs to be paid forthwith.
- 6.Appellant awarded the costs of the appeal.
- 7.Per Pall JA: all moneys paid by the appellant in pursuance of the decree of the superior court to be paid back by the respondent to the appellant.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 1171 of 1995
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court under the Constitution and the Court of Appeal's appellate jurisdiction (specific provision not stated in the judgment).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Eastafrica Packaging Industries Limited v Zoeb Alibhai", Case Analysis (1997). Civil Appeal No. 124 of 1996. Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.