Five Forty Aviation limited v Tradewinds Aviation Services Limited [2015] KECA 125 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that summary judgment cannot be granted without the key documents behind the claim, restoring the defendant's right to 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 granting summary judgment when the supporting documents (charge notes) were not produced and were not agreed by the appellant
- 2.Whether the defence and counterclaim raised bona fide triable issues entitling the appellant to defend the suit
Key legal issues
#Whether summary judgment could issue without production of the primary documents supporting the liquidated claim
It could not; the failure to produce the charge notes, which were not agreed, raised a triable issue requiring full trial
The respondent explained non-production of over 1,500 pages of charge notes on grounds of bulkiness, but the appellant did not agree to their non-production. Without primary or secondary evidence before it, the trial judge could not avail the respondent of summary process. The absence of the documents on which the claim rested was itself a triable issue.
The standard governing summary judgment and striking out of pleadings
A defendant who raises a bona fide triable issue, even one, must be given unconditional leave to defend; the striking out power is used sparingly
Restating the settled principles from D.T. Dobie, Blue Shield and Moi University, the court affirmed that a pleading may be struck out only where clearly untenable, and that a single genuine triable issue warrants a full hearing. On the pleadings and affidavits, the appellant's denial of the claim and its counterclaim disclosed such issues.
Whether an applicant may combine summary judgment under Order XXXV/36 with striking out under Order VI in the same application
The court doubted the propriety of combining the two processes but declined to decide, as no submissions were made on it
The respondent pursued summary judgment in the first instance and, in the alternative, striking out of the defence and counterclaim. The court expressed doubt that both procedures could be combined in one application but, because the parties did not address the point, it declined to discuss it further.
Legal principles established
#- Only one bona fide triable issue is sufficient to entitle a defendant to leave to defend; a triable issue need not be one that will succeed
- A court cannot grant summary judgment on documents that were not produced and not agreed, where their production is itself a triable issue
Court orders
#- 1.Appeal allowed with costs
- 2.The Notice of Motion dated 2nd October, 2009 dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No. 577 of 2009
- Jurisdiction invoked
- First appeal from a ruling of the High Court under the Civil Procedure Act and Rules (the judgment does not cite a specific appellate provision)
Relief refused
#Respondent's request that, if the appeal were allowed, the whole sum claimed be deposited in court or with a bank
No such order was made in the final orders of the court
Costs
Appeal allowed with costs; the Notice of Motion dated 2nd October, 2009 dismissed with costs
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.
We are of considered opinion that the learned judge was wrong to avail the respondent of summary process when there were clear triable issues raised in the defence and counterclaim.
As we have shown only one triable issue was enough to allow the appellant to be heard on its defence and not be shut out of the judgment seat.
The consequence of our finding is that the appeal has merit and we allow it with costs the effect of which is that the Notice of Motion dated 2nd October, 2009 is dismissed with costs.
Issues in the judgment
#The judgment inconsistently records the appellant's first ground of appeal as referring to the agreement subsisting to '7th January, 2010' whereas elsewhere it is dated 7th July, 2009
Kantai JA is listed in the coram as 'JJ.A' but signs the judgment with the designation 'JUDGE'
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Nancy Wanjiru Wangai v National Social Security Fund & 4 others [2019] KEELC 1475 (KLR)[2019] KEELC 1475 (KLR)26 Sept 2019
- Joseph Moilo & 2 others v John Njuki Kariuki & 3 others [2016] KEELC 425 (KLR)[2016] KEELC 425 (KLR)2 Aug 2016
Cite this brief
#Cite this brief
Caselaw, "Five Forty Aviation limited v Tradewinds Aviation Services Limited [2015] KECA 125 (KLR)", Case Analysis (2015). Civil Appeal No. 52 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/125/eng@2015-12-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.