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Court of AppealAllowedCivil Appeal No. 281 of 2009· [2015] KECA 99 (KLR)

Jetlink Express Limited v East African Safari Air Express Ltd.

Court of Appeal of Kenya
18 December 2015
EGE.M. GithinjiMartha Karambu KoomeM.K. KoomeJMJ. Mohammed
4,873 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal reinstated Jetlink Express's USD 4 million lawsuit, confirming that weak-looking claims deserve a full trial, not early dismissal.

What this practically means

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Executive summary

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Jetlink Express Limited sued East African Safari Air Express Ltd for USD 4,068,091.86 arising from a bilateral interline traffic agreement, while the respondent counterclaimed for USD 902,142. Kimaru J. struck out the appellant's suit under the old Order VI Rule 13(1)(b) and (d) of the Civil Procedure Rules, holding it frivolous, vexatious and an abuse of process, principally because the claimed debt was not disclosed in the appellant's 2006 audited accounts and appeared contrived to defeat a threatened winding-up petition; he declined, however, to set aside an interlocutory injunction. The Court of Appeal allowed the appeal. Holding that the sole issue was whether the suit was frivolous and an abuse of process, the Court restated that a plaintiff is entitled to pursue a claim however implausible unless the defendant can demonstrate shortly and conclusively that it is bound to fail, and that a striking-out court must not deal with the merits. The judge had resolved conflicting expert evidence (Deloitte & Touche versus the joint auditor Sanjay Shah) on affidavit evidence without cross-examination, and questions of contingent asset disclosure and the auditor's conflict of interest were unanswered. Such contested issues required a full trial. The Court set aside the ruling of 2nd October 2009, reinstated the appellant's suit for hearing before another judge on a priority basis, and ordered that costs of the appeal abide the outcome of the suit.

Key legal issues

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01

Whether the appellant's suit was frivolous, vexatious and an abuse of the court process

Holding

The suit was not frivolous or an abuse of process; it raised contested issues of fact requiring a full trial

Reasoning

The learned judge relied on affidavit evidence to conclude the claim was frivolous, but there was conflicting expert evidence (Deloitte & Touche versus Sanjay Shah) and questions of conflict of interest and contingent asset disclosure that were never resolved. Determining the veracity of those issues required court room processes at trial, not summary striking out on the merits.

p. 8
02

Whether a judge may resolve contested factual and expert matters on an interlocutory striking-out application

Holding

He may not; where veracity of allegations cannot be determined otherwise than by a full hearing, the suit must proceed to trial

Reasoning

None of the deponents was cross-examined despite conflicting evidence, and the judge made findings on the merits, going beyond the limited function of a striking-out court. Protracted issues raised in affidavits and documents required a full hearing.

p. 8

Legal principles established

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  • A plaintiff is entitled to have an implausible claim proceed to trial unless the defendant can demonstrate shortly and conclusively that it is bound to fail or is an abuse of process
  • In striking out a suit in limine the court must not deal with the merits; determination of merits through intensive interrogation of allegations is reserved for the trial court
  • A finding of a prima facie case at an interlocutory stage does not guarantee success after trial

Court orders

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  1. 1.The ruling of Kimaru J. dated 2nd October 2009 is set aside
  2. 2.The appellant's suit is reinstated
  3. 3.The suit be set down for hearing before another Judge on priority basis
  4. 4.Costs of this appeal shall abide the outcome of the suit
On appeal from
High Court of Kenya at Nairobi
HCCC No. 73 of 2007
Jurisdiction invoked
First appeal to the Court of Appeal under the Constitution/Civil Procedure Act (not expressly stated in the judgment)

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, "Jetlink Express Limited v East African Safari Air Express Ltd.", Case Analysis (2015). Civil Appeal No. 281 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/99/eng@2015-12-18

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