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Court of AppealPartially AllowedCivil Appeal 151 of 2002

KIRINYAGA COUNTY COUNCIL v KIMMI HOUSING CO-OPERATIVE SOCIETY LIMITED [2007] KECA 172 (KLR)

Court of Appeal of Kenya
14 December 2007
1,995 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that summary judgment requires a clear legal claim and no genuine disputes—in this case, the council deserved a full trial.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Nairobi against the judgment of O'Kubasu, J of the High Court delivered on 29th September 1998, which had entered summary judgment for Kshs.1,630,899/15 with interest and costs against Kirinyaga County Council in favour of Kimmi Housing Co-operative Society Limited. The claim arose from the respondent's alleged reliance on a 1982 letter approving its application for a plot at Baricho Township, on the strength of which it incurred professional fees for architects, quantity surveyors and engineers, before discovering the Council did not own the plot. The Court of Appeal identified multiple genuine triable issues: the plaint's cause of action was not discernible in law; the allotment letter was addressed to Ndia Co-operative Society Ltd with no proof that it was the same entity as the respondent; the relevant committee minutes were not produced; the Council Clerk deponed the allocation was a nullity and ultra vires the Local Government Act; the plot number was inconsistently identified; and the quantum of damages was deemed traversed under Order VI Rule 9(4) CPR. The court also held the superior court erred in relying on a further affidavit filed without leave. It found the summary judgment test not satisfied. The Court of Appeal allowed the appeal, set aside the ruling and decree of the High Court, dismissed the respondent's summary judgment application of 17th December 1992, and awarded the appellant the costs of the appeal and of the dismissed motion. Judgment was delivered on 14th December 2007 by Githinji, Onyango Otieno and Deverell, JJA.

Questions the Court framed

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

  1. 1.Whether the plaint disclosed a cause of action known in law
  2. 2.Whether the superior court erred in entering summary judgment despite genuine triable issues
  3. 3.Whether the respondent was allocated any specific plot at Baricho Township in accordance with the Local Government Act
  4. 4.Whether the further affidavit filed without leave ought to have been relied upon
  5. 5.Whether the claim amount was truly undisputed

Key legal issues

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01

Whether the plaint disclosed a cause of action known in law

Holding

The cause of action was not easily discernible; whether the plaint disclosed a known cause of action was a genuine issue that should have gone to trial.

Reasoning

The court analysed the pleadings, affidavits and submissions and found difficulty appreciating the respondent's cause of action. The suit variously invoked actionable representation, fraudulent misrepresentation (conceded not pleaded) and unjust enrichment. The court held this ambiguity was itself a triable issue that the summary judgment process could not resolve.

p. 3
02

Whether the respondent was allocated a specific plot in accordance with the Local Government Act

Holding

Whether the respondent was allocated any specific plot by the appellant in accordance with the Local Government Act was a genuine triable issue.

Reasoning

The allotment letter was addressed to Ndia Co-operative Society Ltd, not the respondent, and no documentary evidence established they were the same entity. The relevant committee minutes were not produced, the County Clerk deponed the allocation was a nullity and ultra vires the Local Government Act, and the plot number was inconsistently described as No. 96, 97 or 98.

p. 3
03

Whether the claim amount was undisputed

Holding

The superior court's finding that the amount claimed was not disputed was erroneous; damages are deemed traversed unless specifically admitted.

Reasoning

The appellant had deponed that no valid invoices were annexed and questioned whether the professional services were rendered. The court held that allegations of damage and quantum are deemed traversed unless specifically admitted under Order VI Rule 9(4) CPR, so the issue should have gone to trial.

p. 3
04

Whether the respondent acted reasonably in expending money before obtaining a valid document of title

Holding

Whether the respondent acted reasonably in expending money on professionals before obtaining a valid lease was a triable issue.

Reasoning

The court found it unclear when the respondent engaged the professionals or discovered the appellant had no plot to convey. The architectural drawings were done in 1987, yet the respondent held only a letter of allotment. The reasonableness of expending funds before obtaining a lease was therefore a fit issue for trial.

p. 4

Legal principles established

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  • Summary judgment will only be entered where the plaintiff demonstrates the defendant is truly liable and the defence raises no genuine triable issue; otherwise the defendant must be given unconditional leave to defend.
  • A further affidavit filed without leave of the court cannot be relied upon by the court hearing a summary judgment application.
  • An allegation of damage and of the amount of damages is deemed traversed unless specifically admitted.

Court orders

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  1. 1.Appeal allowed
  2. 2.Ruling and decree of the superior court dated 29th September 1998 entering summary judgment against the appellant set aside
  3. 3.Substituted order dismissing the respondent's application for summary judgment dated 17th December 1992
  4. 4.Appellant awarded costs of the appeal and of the dismissed motion

The bench

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

majority
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 6815 of 1991
Jurisdiction invoked
First appeal from the High Court under the Court of Appeal's appellate jurisdiction (specific provision not stated in the judgment)

Relief refused

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Summary judgment for the respondent in the sum of Kshs.1,630,899/15 with interest and costs

Genuine triable issues existed; the appellant should have been given unconditional leave to defend

p. 4

Costs

The appellant is entitled to the costs of the appeal and of the dismissed motion

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.

In the result, we allow the appeal and set aside the ruling and decree of the superior court dated 29th September, 1998 entering summary judgment against the appellant and substitute, therefor, an order dismissing the respondent’s application for summary judgment dated 17th December, 1992.
p. 4Final orders - appeal allowed, summary judgment set aside
we are persuaded that the appellant had shown that there were genuine triable issues fit for trial and that it should have been given unconditional leave to defend.
p. 4Unconditional leave to defend
The superior court should not have relied on the further affidavit filed without leave.
p. 3Further affidavit filed without leave
An allegation that a party has suffered damage and any allegation as to the amount of damages is deemed to have been transversed unless specifically admitted (see Order VI Rule 9 (4) CPR).
p. 3Deemed traversal of damages
Indeed, the issue whether or not the plaint disclosed a cause of action known in law was a genuine one and should have gone for trial.
p. 3Cause of action as triable issue

Issues in the judgment

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minor

The judgment inconsistently records the claimed amount, stating Shs.1,630,899/15 in places but Shs.1,630,889/15 in the quotation of the trial judge's finding

minor

The coram listing misspells the title of E. M. Githinji as 'JDUGE OF APPEAL'

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "KIRINYAGA COUNTY COUNCIL v KIMMI HOUSING CO-OPERATIVE SOCIETY LIMITED [2007] KECA 172 (KLR)", Case Analysis (2007). Civil Appeal 151 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/172/eng@2007-12-14

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