Unilink Kenya Limited v David Merrick Evans [2002] KECA 160 (KLR)
The bottom line
#Kenya's Court of Appeal restored a company's defence, ruling that disputed questions — like who actually employed a worker — must be resolved at a full trial.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge erred in holding that the respondent was employed by the appellant when the letter of appointment was from AFCO Holdings Ltd
- 2.Whether the defence and counterclaim raised triable issues such that they should not have been struck out and summary judgment entered
Key legal issues
#Whether the defence raised triable issues precluding striking out and entry of summary judgment
Yes; the question of who employed the respondent, the interpretation of the tri-partite termination agreement, and the relationship between AFCO and the appellant were all matters for trial.
The court held that striking out is drastic and reserved for the clearest of cases. Paragraph 3 of the defence, denying employment by the appellant and pointing to payment outside Kenya with no PAYE, NSSF or NHIF, raised a triable issue. The termination agreement required interpretation after cross-examination, and the AFCO-appellant relationship was unclarified by the parties. The Judge reached his conclusion hastily without due regard to striking-out principles.
Whether the counterclaim based on alleged breach of director's duties was fit for striking out
No; allegations that the respondent formed a parallel company to compete and used his position as director to divert orders were not matters suitable for striking out.
Paragraphs 6 and 7 of the defence, reiterated to ground the counterclaim, alleged the respondent formed a competing company and used his directorship to solicit orders for it, with the extent of the breach of trust to be pleaded after discovery. Such allegations could not be disposed of on a striking-out application; amendments could clarify poorly worded paragraphs.
Legal principles established
#- Striking out a pleading is a drastic remedy to be used only in the clearest of cases where the claim or defence is clearly incontestable; where an amendment could sustain a claim or defence, the court should order amendment rather than strike out.
- Where a defence raises a triable issue, as for example the identity of the employer, the matter must go to trial rather than be determined on a striking-out or summary judgment application.
Court orders
#- 1.Appeal allowed with costs
- 2.Orders made by the Superior Court on 12th February 1999 set aside
- 3.Respondent's application in the Superior Court dated 16th October 1998 dismissed with costs
- 4.Suit in the Superior Court to proceed to trial in the normal manner
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya (Superior Court)
- Jurisdiction invoked
- First appeal to the Court of Appeal from the Superior Court (High Court) in a civil suit
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.
Striking out of a pleading is a drastic remedy and ought to be resorted to in the clearest of cases where the claim or the defence (as the case may be) is clearly incontestable and that as far as possible the court should aim at sustaining rather than terminating a suit.
It has been stated, and we reiterate, that if an amendment could sustain a claim or defence the court ought to order such amendment rather than strike out the pleading.
Whether or not the respondent was employed by the appellant was clearly an issue for a trial court rather than a court seized of a summary judgment or a striking out application.
The upshot of this is that this appeal is allowed with costs. The Orders made by the Superior Court on the 12th day of February, 1999 are set aside with the result that the respondent's application in the Superior court dated 16th October, 1998 is dismissed with costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Unilink Kenya Limited v David Merrick Evans [2002] KECA 160 (KLR)", Case Analysis (2002). Civil Appeal No. 233 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/160/eng@2002-05-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.