Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedNot stated in judgment

L K Mwanthi v F M Imanene & another [1982] KECA 29 (KLR)

Court of Appeal of Kenya
30 November 1982
2,879 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal ruled a tenant could defend a rent claim, but only after paying Kshs 45,000 into court first.

What this practically means

#

Executive summary

#
The landlords sued their Meru tenant for Kshs 45,000 arrears of rent, pleading ten months from May 1, 1979, while their summary judgment affidavits claimed rent for October 1980 to July 1981. The High Court entered summary judgment for the landlords and the tenant appealed. The Court of Appeal allowed the appeal. First, the tenant's supplementary record of appeal, containing Tribunal documents already in existence but inadvertently omitted, could be filed without leave under rule 85(1)(k) and was not additional evidence. Second, the pending Business Premises Rent Tribunal case did not bar the suit under section 6 of the Civil Procedure Act: the Tribunal dispute concerned different months' rent, so the matters were not directly and substantially the same. Third, although the affidavits omitted the Form No 3A averment of belief that there is no defence, section 72 of the Interpretation and General Provisions Act saved the deviation, since the sworn statement that the tenant was 'justly and truly' indebted did not affect substance or mislead. However, there was a triable issue - whether the tenancy commenced on May 1 or September 1, 1979 - so leave to defend ought to have been granted. Because the defendant merely traversed the claim without condescending to particulars, the court granted conditional leave to defend, subject to depositing Kshs 45,000 in court by January 31, 1983, and set aside the High Court decree, with costs of the summary judgment application in the cause.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether a supplementary record of appeal could be filed without leave of the court
  2. 2.Whether section 6 of the Civil Procedure Act barred the suit given the pending Business Premises Rent Tribunal case
  3. 3.Whether the application for summary judgment was competent despite non-compliance with Form No 3A of Order XXXV
  4. 4.Whether there was a triable issue and, if so, whether leave to defend should be unconditional or conditional

Key legal issues

#
01

Res judicata / sub judice under section 6 of the Civil Procedure Act

Holding

Section 6 did not bar the suit because the dispute before the Tribunal concerned different months' rent than that claimed in the suit.

Reasoning

The Tribunal dispute concerned rent for May to August 1979, while the summary judgment affidavit expressly claimed rent for October 1980 to July 1981. Despite the mismatch between the plaint and the affidavits, the court held the nature of the litigation showed the issues were not directly and substantially the same, so section 6 was not engaged; the court found it unnecessary to decide whether the section applied to Tribunals at all.

p. 2
02

Competency of the summary judgment application despite defective affidavit

Holding

Omission of the Form 3A words 'I verily believe that there is no defence to this suit' did not void the application.

Reasoning

Relying on section 72 of the Interpretation and General Provisions Act (Cap 2), the court held a deviation from a prescribed form does not void a document unless it affects substance or is calculated to mislead. The sworn statements 'justly and truly' indebted verified the claim and implied belief in no defence, and the specific months claimed were clearly set out. Defects may be cured or supplemented by later affidavits.

p. 4
03

Triable issue and conditional leave to defend

Holding

There was a triable issue as to whether the tenancy commenced on May 1 or September 1, 1979; conditional leave to defend, not summary judgment, was appropriate.

Reasoning

The plaint claimed ten months' rent from May 1, 1979, while the defendant asserted possession from September 1, 1979. The court found the summary procedure drastic and deserving of judicious restraint, but because the defendant merely traversed the allegation without condescending to particulars, leave was to be conditional on a deposit of Kshs 45,000.

p. 4
04

Filing of supplementary record of appeal without leave

Holding

Permissible under rule 85(1)(k); it was not additional evidence.

Reasoning

Rule 85(1)(k) enables filing of documents necessary for the proper determination of the appeal without leave. The supplementary record merely augmented the original record with documents already in existence that were inadvertently omitted; it was right that all necessary documents be before the court.

p. 2

Legal principles established

#
  • Section 6 of the Civil Procedure Act bars proceedings only where the matter in issue is directly and substantially the same as that in the previously instituted proceeding between the same parties.
  • A supplementary record of appeal comprising documents already in existence but inadvertently omitted may be filed without leave under rule 85(1)(k) and does not constitute additional evidence.
  • An affidavit in support of summary judgment need not strictly track Form No 3A where the deviation does not affect substance or mislead, by virtue of section 72 of the Interpretation and General Provisions Act; a sworn statement that the defendant is 'justly and truly' indebted verifies belief that there is no defence.
  • Where the court is not satisfied with the bona fides of a defence and it is shadowy or dubious, conditional leave to defend is the appropriate course; the summary procedure is a drastic remedy.

Court orders

#
  1. 1.Appeal allowed with costs
  2. 2.Decree of the High Court setting aside
  3. 3.Leave to defend granted conditionally, subject to the defendant depositing Kshs 45,000 in court by January 31, 1983
  4. 4.Costs of the application for summary judgment to be in the cause

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority
concurring

Wrote the judgment

Agreed with the orders proposed but wrote separately to elaborate: he found triable issues on the tenancy commencement date, doubted the plaint could be read as covering any ten-month period, endorsed conditional leave to defend where a defence is shadowy, and independently concluded the Tribunal dispute did not engage section 6 of the Civil Procedure Act.

For my part, I do not think this was sufficiently clear case within Zola v Ralli Bros [1969] EA at p 694 for the absolute denial of leave to defend.p. 4
On appeal from
High Court
Not stated
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal under its Rules of Court (first appeal against entry of summary judgment)

Relief refused

#

Unconditional leave to defend

The defence raised a triable issue on the commencement date of the tenancy, but was not bona fide enough to merit unconditional leave given doubts about the defendant's candour

p. 4

Stay of the suit under section 6 of the Civil Procedure Act

The matter in issue in the suit was not directly and substantially the same as that before the Rent Tribunal

p. 2

Costs

Appeal allowed with costs; costs of the application for summary judgment to be in the cause.

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.

I would allow the appeal with costs, set aside the decree of the High Court, and substitute therefor an order granting leave to defend conditionally subject to the defendant depositing in court the sum of Kshs 45,000 by January 31, 1983. The costs of the application for summary judgment to be in the cause.
p. 4Final orders / disposition
It was a case in which judicious restraint had to be exercised to resist the inducement for the summary procedure is a drastic remedy.
p. 4Summary judgment procedure
The Supplementary Record did not constitute additional evidence, it merely augmented the original record of appeal by other documents which already existed and which were inadvertently omitted from the original record of appeal but which were necessary for the proper determination of the appeal.
p. 2Supplementary record of appeal
Recent decisions show that where the court feels this, and the defence can be described as "shadowy" or "dubious", then conditions for giving leave to defend should be imposed.
p. 5Conditional leave to defend
the matter in issue in the suit was not also directly and substantially in issue in the proceedings before the Tribunal.
p. 2Section 6 Civil Procedure Act

Issues in the judgment

#
minor

The plaint claims ten months' rent from May 1, 1979, while the supporting affidavit claims ten months from October 1980 to July 1981; the court noted this internal inconsistency in the plaintiffs' case.

minor

The Tribunal case number is inconsistent in the record, referred to variously as Number 16/80, Number 6 of 1980 and Number 133 of 1981.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "L K Mwanthi v F M Imanene & another [1982] KECA 29 (KLR)", Case Analysis (1982). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1982/29/eng@1982-11-30

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