Premier Bag & Cordage Limited v Paul Gicobi Marui [2014] KEELC 108 (KLR)
The bottom line
#The court refused a landlord's bid for quick judgment against a tenant, ruling the disputed lease raised issues that must go to 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 Plaintiff has demonstrated that this is a proper case for summary judgment as provided by Order 36(1) of the Civil Procedure Rules
- 2.Whether the Defendant raised triable issues entitling him to leave to defend the suit
- 3.Whether the claim for rent arrears and mesne profits constitutes a liquidated demand within Order 36 Rule 1(a)
Key legal issues
#Whether the Defendant raised triable issues on the existence and terms of the lease and the applicable tenancy regime
Yes; the contested existence of a formal lease, the without prejudice status of the letter of offer and the alleged controlled tenancy are triable issues
The letter of offer dated 22nd January 2003 is highly contested as having been exchanged on a without prejudice basis, and the Defendant asserts a controlled tenancy under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act with the dispute belonging to the Business Premises Tribunal. Following ICDC v Daber Enterprises and Momanyi v Hatimy, summary judgment requires a plain and obvious case; where it is not, a party cannot be deprived of a proper trial.
Whether the rent arrears and mesne profits claims are liquidated demands under Order 36 Rule 1(a)
No; the sums are pleaded as special damages requiring proof, particularly where the lease and its terms are contested
Relying on Gurbaksh Singh & Sons Ltd v Njiri Emporium Ltd, the court held that a sum is liquidated only if it can be calculated independently of the claim. Here the amounts of Kshs 3,493,462.34 and Kshs 94,317.28 are pleaded as special damages in paragraphs 5 and 6 of the Plaint and their ascertainment depends on proving the existence and terms of a contested lease, requiring investigation beyond mere calculation.
Whether the court should enter summary judgment under Order 36(1)
No; the application was dismissed and the Defendant granted unconditional leave to defend
Applying Giciem Construction and Zola Limited v Ralli Brothers, where a defendant shows a fair case for defence or reasonable grounds for setting up a defence, leave to defend must be given. The contested lease, jurisdictional challenge and disputed account meant the matter was not plain and obvious, so summary judgment was declined.
Legal principles established
#- Leave to defend must be given on summary judgment unless it is clear there is no real substantial question to be tried
- A sum does not become liquidated merely because it is claimed; if ascertainment requires investigation beyond mere calculation it constitutes damages at large
- Where triable issues are raised the court has no discretion but to grant the defendant unconditional leave to defend
Court orders
#- 1.The prayers in the Plaintiff's Notice of Motion dated 18th March 2014 are declined
- 2.The Plaintiff shall meet the costs of the said Notice of Motion
- 3.The Defendant is granted leave to file and serve his Defence within 15 days of the date of the ruling
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 36 Rule 1 of the Civil Procedure Rules (summary judgment jurisdiction of the High Court/ELC over claims for liquidated demand and recovery of land)
Relief refused
#Summary judgment for vacant possession of LR No. 255/3 (Premier Bag Shopping Complex)
Triable issues were raised, notably whether a formal lease existed, whether the tenancy was a controlled tenancy under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act and jurisdiction of the Business Premises Tribunal
Summary judgment for Kshs 3,493,462.34 rent arrears and Kshs 94,317.28 monthly mesne profits with interest
The sums are contested and claimed as special damages requiring proof, hence not a liquidated demand
Costs
The Plaintiff shall meet the costs of the said Notice of Motion.
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.
The prayers in the Plaintiff’s Notice of Motion dated 18th March 2014 are therefore declined for the reasons given in the foregoing, and the Plaintiff shall meet the costs of the said Notice of Motion.
The Defendant is accordingly granted leave to file and serve his Defence within 15 days of the date of this ruling.
Leave to defend must be given unless it is clear that there is no real substantial question to be tried.
If the ascertainment of the sum claimed requires investigation beyond mere calculation, then the sum is not a debt or liquidated demand, but constitutes damages at large.
Issues in the judgment
#The judgment date is printed with blank lines around the day and month: 'Dated, signed and delivered in open court at Nairobi this ____16th___ day of _____October____, 2014.'
Inconsistent dates for the letter of offer: the Plaintiff relies on a letter of offer dated 22nd January 2003 while the Defendant's submissions refer to a letter of offer dated 22nd July 2003.
Demand letter dates listed out of chronological order (10th January 2008, 16th November 2011, 27th March 2011 and 22nd January 2014).
The grounds of opposition are dated 3rd July 2013, which predates the Plaint dated 26th February 2014 and the Notice of Motion dated 18th March 2014.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Premier Bag & Cordage Limited v Paul Gicobi Marui [2014] KEELC 108 (KLR)", Case Analysis (2014). Nairobi ELC — Notice of Motion dated 18th March 2014 in suit filed by Plaint dated 26th February 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/108/eng@2014-10-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.