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Court of AppealDismissedNot stated in the judgment as provided· [1977] KECA 18 (KLR)

City Printing Works (Kenya) Ltd v Peter S. Bailey [1977] KECA 18 (KLR)

Court of Appeal for East Africa
21 April 1977
SWS.W.W. WambuziELE.J.E. LawJMJ.S.M. Musoke
1,521 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed judges can require defendants to deposit the claimed amount in court when they doubt the honesty of the defence.

What this practically means

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Executive summary

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The plaintiff sued in the High Court claiming Shs 24,000 as an agreed annual bonus under a contract of employment as general manager, pleaded in a letter of 29th August 1973. The defendant company applied for and was granted leave to defend by Madan J, but only conditionally, subject to depositing the amount claimed in court within twenty days, failing which the plaintiff could sign final judgment. The defendant appealed, submitting through counsel that since the judge had not expressly found the defences to be a sham, unconditional leave should have been granted, relying on Kundanlal Restaurant v Devshi & Co, Souza Figuerido & Co Ltd v Moorings Hotel Co Ltd, and Spry JA's dictum in Camille v Amin Mohamed Merali. Counsel also attacked the judge's use of the expression 'balance of probabilities'. Law V-P, delivering the judgment of the court, rejected both grounds. The balance-of-probabilities reference was directed to whether the defence was reasonable and bona fide, not to prejudging the suit. On the merits, the court noted stark contradictions between the defence pleaded and the defendant's later affidavit, which conceded both that the plaintiff had worked as general manager for three months and that a written agreement on gratuity existed, leading the judge to conclude that the defendant's bona fides were 'clouded with strong doubt' and that a new defence was being set up. Doubt as to genuineness is equivalent to a finding that a defence is a sham, giving the judge a discretion to impose conditions on leave to defend. The appeal was dismissed with costs by Wambuzi P, Law V-P and Musoke JA.

Key legal issues

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01

The proper approach of the court on an application for summary judgment

Holding

The court must consider whether, on a balance of probabilities, the defendant has shown a reasonable and bona fide defence, without prejudging the final outcome of the suit.

Reasoning

Madan J's reference to weighing the balance of probabilities was not a misdirection. In deciding whether a defendant has shown a good defence, the court has regard to the merits as disclosed in the pleadings and affidavits. The judge was confining himself to whether the grounds of defence justified leave to defend, not prejudging the suit. The expression was directed to whether the defence was reasonable and bona fide.

p. 3
02

Whether absence of an express finding of sham defence precludes conditional leave

Holding

A judge who thinks the grounds of defence are not genuine - which is equivalent to thinking they are a sham - has a discretion to impose conditions on leave to defend.

Reasoning

Although Madan J did not in terms find the defences a sham, he had grave doubts as to their bona fides, noting that a new defence had been raised in the affidavit which contradicted the defence pleaded. Doubt as to genuineness is equivalent to a finding of sham. This gave the judge a discretion to order conditional leave, requiring the amount claimed to be deposited in court.

p. 3

Legal principles established

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  • A defendant seeking leave to defend must show a reasonable, bona fide or plausible defence on the merits as disclosed in the pleadings and affidavits.
  • Where the judge thinks the proposed grounds of defence are not genuine, he has a discretion to impose conditions on leave to defend; otherwise the defendant is entitled to unconditional leave.

Court orders

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  1. 1.Appeal dismissed with costs
On appeal from
High Court of Kenya
Jurisdiction invoked
Appeal to the East African Court of Appeal from the High Court of Kenya (statutory basis not stated in the judgment)

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, "City Printing Works (Kenya) Ltd v Peter S. Bailey [1977] KECA 18 (KLR)", Case Analysis (1977). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1977/18/eng@1977-04-21

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