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Court of AppealAllowedCivil Appeal No. 296 of 2004

Moi University v Vishva Bulders Limited [2010] KECA 397 (KLR)

Court of Appeal of Kenya
18 February 2010
ROR.S.C. OmoloEOE.O. O'KubasuEGE.M. Githinji
2,578 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that a defendant must be allowed to defend a lawsuit if even one genuine disputed issue exists, overturning summary judgment against Moi University.

What this practically means

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Executive summary

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This is an appeal by Moi University against a ruling of the High Court at Eldoret (Omondi Tunya, J) delivered on 16th October 2002 granting Vishva Bulders Limited summary judgment under Order XXXV rules 1 and 2 of the Civil Procedure Rules. The underlying dispute arose from a 1990 building contract for a Faculty of Science Complex, with the claim ultimately pleaded at Shs.185,305,011.30. The appellant argued that its defence raised bona fide triable issues, including whether the Departmental Representative had authority to issue interim certificates, whether certificates Nos. 8 to 13 had been cancelled and/or reinstated, and whether the parties had agreed that no interest would be payable on delayed payments. The respondent maintained that the interim certificates created a debt justifying summary judgment and that the defence raised no triable issues. The Court of Appeal (Omolo, O'Kubasu and Githinji, JJ.A) restated the settled principle that if a defence raises even one bona fide triable issue the defendant must be given leave to defend, drawing on Hasmani, Patel, Postal Corporation of Kenya v Inamdar, Continental Butchery and Dhanjal Investments. It found serious triable issues in the defence and held that a triable issue need not be one that will succeed. The appeal was allowed; the decision and decree of the superior court were set aside and the suit remitted for trial, with the appellant awarded the costs of the appeal and of the summary judgment application below.

Questions the Court framed

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

  1. 1.Whether the learned Judge of the High Court was entitled to enter summary judgment against the appellant
  2. 2.Whether the appellant's defence raised bona fide triable issues entitling it to leave to defend

Key legal issues

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01

Whether the High Court was entitled to enter summary judgment under Order XXXV rules 1 and 2

Holding

The appeal was allowed because the appellant's defence raised serious triable issues - the authority of the Departmental Representative to issue interim certificates, the cancellation and possible reinstatement of certificates Nos. 8-13, and the question of interest on delayed payments - which should go to full trial.

Reasoning

The Court traced the settled principles on summary judgment from Hasmani through Patel to Postal Corporation, Continental Butchery and Dhanjal Investments. It noted the learned Judge treated the interim certificates as conclusive proof of indebtedness, but the dispute over the DR's jurisdiction, cancelled certificates and the alleged agreement that no interest be charged on delayed payments raised bona fide triable issues. Even one such issue required unconditional leave to defend, so summary judgment was wrongly entered and the decree was set aside with the suit remitted for trial.

p. 5

Legal principles established

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  • If a defendant's defence raises even one bona fide triable issue, the defendant must be given leave to defend; summary judgment cannot be entered where a triable issue exists.
  • A triable issue need not be one that will succeed at trial; it is an issue raising a prima facie defence that should go to trial for adjudication.
  • Unconditional leave to defend is not required where the defence raised is a sham.
  • In building contracts, an employer who claims work was overvalued in an interim certificate can resist summary judgment by raising sufficient doubts about the certificate.

Court orders

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  1. 1.Appeal allowed
  2. 2.Decision and decree of the superior court set aside
  3. 3.Suit remitted for trial in the superior court
  4. 4.Appellant awarded costs of the appeal and costs of the application for summary judgment in the superior court

The bench

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

RO
majority
EO
majority
EG
majority
On appeal from
High Court of Kenya at Eldoret
Eldoret HCCC No. 51 of 1999
Jurisdiction invoked
First appeal to the Court of Appeal under the Civil Procedure regime; leave to lodge the appeal out of time granted by Githinji, J.A on 10th November 2004

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 law is now settled that if the defence raises even one bona fide triable issue, then the defendant must be given leave to defend.
p. 4Summary judgment - triable issues
In this respect defence on the merits does not mean, in my view a defence that must succeed, it means as SHERIDAN , J put it "a triable issue" that is an issue which raises a prima facie defence and which should go to trial for adjudication.
p. 4Meaning of a triable issue (Patel, quoted with approval)
With a view to eliminate delay in the administration of justice which would keep litigants out of their just dues or enjoyment of their property, the court is empowered in an appropriate suit to enter judgment for the claim from the plaintiff under summary procedure provided by Order 35 subject to there being no triable issues which would entitle a defendant leave to defend.
p. 4Purpose and limits of the summary procedure (Continental Butchery, quoted with approval)
Accordingly the appeal is allowed, the decision and decree of the superior court set aside and we order that the suit be remitted for trial in the superior court. The appellant will have the costs of this appeal and the costs of the application for summary judgment in the superior court.
p. 5Final orders and disposition

Issues in the judgment

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minor

Kundanlal Restaurant and Souza Fiqueredo appear within a block quotation from Dhanjal Investments; the judgment's formatting does not clearly separate court-endorsed authority from authority quoted within a precedent, making their treatment slightly ambiguous.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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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, "Moi University v Vishva Bulders Limited [2010] KECA 397 (KLR)", Case Analysis (2010). Civil Appeal No. 296 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/397/eng@2010-02-18

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