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Court of AppealPartially AllowedCivil Appeal No. 234 of 2005

SULTAN HARDWARES LIMITED v STEEL AFRICA LIMITED [2011] KECA 360 (KLR)

Court of Appeal of Kenya
4 March 2011
1,022 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that summary judgment is only for the clearest cases — if a defence raises real questions, the dispute must go to full trial.

What this practically means

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Executive summary

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The respondent, Steel Africa Limited, sued the appellant, Sultan Hardwares Limited, for US$30,000, alleging it was the balance due on goods sold and delivered in 1997. The appellant denied privity of contract and indebtedness, and in an amended defence alleged that its manager, Gulza Darnesh, acted in his personal capacity as the respondent's marketing agent, with the appellant merely providing premises. The respondent applied for summary judgment under Order XXXV, Rule 1 of the Civil Procedure Code. On 15th August 2003 Sergon J found the defence not bona fide, a sham bent on delaying trial, and entered judgment for the respondent for US$30,000 plus interest and costs. The appellant appealed on nine grounds. The Court of Appeal (Tunoi, Githinji and Aganyanya, JJ.A.) noted that the suit had not been heard on its merits and that the real question was whether the appellant should have been heard on its defence. Applying Lalji t/a Vakkep Building Contractors v Casousel Ltd, the Court held summary judgment is a draconian measure reserved for the clearest of cases and that a trial must be ordered where a triable or fairly arguable issue exists. The replying affidavit annexed documents showing the respondent supplied goods to customers other than the appellant, and the role of James Rambira and Gulza Darnesh as intermediaries had to be tested at trial. The appeal was allowed and the case ordered to be fully heard before another Judge at Mombasa, with costs of the application to be in the main case.

Questions the Court framed

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

  1. 1.Whether the defendant-appellant raised triable issues such that summary judgment under Order XXXV, Rule 1 of the Civil Procedure Code ought to have been refused
  2. 2.Whether the appellant should have been given an opportunity to be heard on its defence

Key legal issues

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01

Whether summary judgment was properly entered where the defence raised triable issues

Holding

The appeal was allowed: the defence raised triable issues, including the role of third parties through whom the respondent's products were supplied, and the appellant was entitled to be heard on its defence at a full trial.

Reasoning

The Court, affirming the approach in Lalji t/a Vakkep Building Contractors v Casousel Ltd, treated summary judgment as a draconian measure appropriate only in the clearest of cases. The replying affidavit annexed documents showing the respondent supplied goods to customers other than the appellant, partly shifting the alleged indebtedness, and the names of James Rambira and Gulza Darnesh featured as intermediaries. Those matters could only be tested at a full trial. The judge below had found the defence a sham without the merits being tested, denying the appellant a hearing on its defence.

p. 2

Legal principles established

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  • Summary judgment is an exceptional remedy reserved for the clearest of cases; where a triable or fairly arguable issue exists, the matter must go to trial.

Court orders

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  1. 1.Appeal allowed
  2. 2.Case to be fully heard by the superior court before another Judge at Mombasa
  3. 3.Costs of the application to be in the main case

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Mombasa
H.C.C.C. No. 104 of 1999
Jurisdiction invoked
First appeal against an interlocutory ruling of the High Court under the Civil Procedure Code (appeal as of right; no specific constitutional provision stated)

Relief refused

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Upholding the summary judgment and decree of US$30,000

The defence raised triable issues and the appellant should have been heard on its defence; the role of third parties had to be tested at trial

p. 2

Costs

Costs of the application to be in the main case

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.

Summary judgment is a draconian measure and should be given in only the clearest of cases. A trial must be ordered if a triable issue is found or one which is fairly arguable is found to exist.
p. 2Summary judgment - exceptional remedy
We are of the view that this is a case where the appellant should have been given an opportunity to be heard on its defence.
p. 2Right to be heard on a filed defence
In the ultimate we allow this appeal and direct that the case be fully heard by the superior court before another Judge at Mombasa. Costs of this application to be in the main case.
p. 2Final orders - disposition

Issues in the judgment

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minor

Internal inconsistency in dates: the notice of motion is described as dated 8th October, 1999 but the High Court ruling refers to allowing 'the notice of motion dated 5th December, 1999'.

minor

The judgment quotes the High Court ruling but in the quoted passage the judge appears to attribute to himself the burden of showing the defence a sham ('the plaintiff has to show that the defence... is a sham'), which is internally at odds with his conclusion; reproduced verbatim as quoted.

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, "SULTAN HARDWARES LIMITED v STEEL AFRICA LIMITED [2011] KECA 360 (KLR)", Case Analysis (2011). Civil Appeal No. 234 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/360/eng@2011-03-04

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