Isaiah Makutwa Kubondo v Cannon Assurance Company Limited
The bottom line
#Kenya's Court of Appeal confirmed that a defence raising even one genuine dispute deserves a full trial, not striking out.
What this practically means
#Executive summary
#Key legal issues
#Whether the defence raised triable issues entitling the Respondent to leave to defend
Yes. The Respondent denied being the insurer and denied service of statutory notice; these contestations could only be resolved in a full trial. The first appellate Court did not err.
The Court found a live contest between the parties as to whether the Respondent issued the insurance policy and whether the statutory notice was sent and received. The Statement of Defence denied both facts and sought leave to supply witness statements and documents. Such contestations can only be determined upon adjudication in a full trial, so the first appellate Court correctly found triable issues.
Whether the first appellate Court erred on the burden of proof
The issue was premature. Once the striking-out question was resolved, remaining issues were matters of merit for trial.
The Court held the only question before the trial Court and first appellate Court was when a defence may be struck out, on which the law is settled. Once resolved, all other issues, including statutory defences and evidential sufficiency, fall for determination at trial or judgment. The burden of proof question therefore did not arise for determination at this interlocutory stage.
The legal standard for striking out a defence
The power must be exercised sparingly and only where the pleading is clearly untenable; a single triable issue entitles a defendant to leave to defend.
Relying on its own precedents (Postal Corporation of Kenya v IT Inamdar, Blue Shield Insurance v Joseph Mboya Ogutu, Moi University v Vishva Builders), the Court reaffirmed that striking out a pleading drives a party from the judgment seat and must be reserved for clearly untenable pleadings. Even one triable issue suffices for a full hearing.
Legal principles established
#- The power to strike out a pleading which ends in driving a party from the judgment seat should be used very sparingly and only where the pleading is clearly untenable; one triable issue suffices for leave to defend
- Averments in pleadings are not evidence until proved or admitted; no decision may be founded on them
- The burden on a plaintiff to prove his case remains the same throughout the case and is not lessened by the defendant's failure to call evidence; the plaintiff must adduce some credible and believable evidence
- The duty of a second appellate Court is limited to matters of law, unless the two courts below considered matters they should not have, failed to consider matters they should have, or the decision is perverse
Court orders
#- 1.The appeal is dismissed
- 2.No order as to costs
- On appeal from
- High Court of Kenya at Nairobi
- Nairobi Civil Appeal Case No. 517 of 2015
- Jurisdiction invoked
- Second appeal to the Court of Appeal on matters of law
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Isaiah Makutwa Kubondo v Cannon Assurance Company Limited", Case Analysis (2024). Second Appeal from Nairobi Civil Appeal Case No. 517 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1323/eng@2024-09-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.