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Court of AppealAllowedMiscellaneous Civil Application (Court of Appeal, stay application arising from High Court Miscellaneous Civil Application No. 360 of 1982)· [1988] KECA 130 (KLR)

Adala v Anjere [1988] KECA 130 (KLR)

Court of Appeal of Kenya
6 July 1988
804 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This Court of Appeal ruling, delivered at Nairobi on 6th July 1988 by Gachuhi and Apaloo JJA and Gicheru Ag JA, dealt with an amended application filed on 16th March 1988 seeking a stay of execution of High Court orders in Miscellaneous Civil Application No. 360 of 1982 pending an intended appeal. The dispute arose from an advocate-client relationship: the applicant advocate received Shs. 800,000/- in damages for the respondent in a 1979 accident claim, paid over Shs. 740,000/- and retained Shs. 60,000/- (Shs. 50,000/- fees and Shs. 10,000/- disbursements). After proceedings before the Disciplinary Committee of the Law Society, the applicant's bill was taxed at Shs. 22,553/- and he was ordered to refund Shs. 37,447/-. The respondent then invoked Order 35 rule 1(a) and Order IXA rule 8 of the Civil Procedure Rules by Chamber Summons, and on 26th January 1988 judgment for Shs. 37,447/- was entered against the applicant without a replying affidavit. The Court held that a Chamber Summons is a vehicle for interlocutory applications only and that there is no procedure by which a claim can be commenced, or judgment entered, in the absence of pleadings. Order 35 summary judgment applies only where a suit exists, the defendant has appeared but not filed a defence, and the application has been served. The High Court was found to have erred in accepting this wrong procedure. The stay application was allowed with costs in terms of prayer one under Rule 5(2)(b) of the Court of Appeal Rules. The judgment binds subordinate courts and the High Court on the limits of summary judgment procedure.

Key legal issues

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01

Whether judgment could be entered under Order 35 rule 1(a) by Chamber Summons where no suit or pleadings existed

Holding

No. Order 35 summary judgment presupposes a suit commenced by plaint or originating summons, with pleadings on record, the defendant having appeared but not filed a defence, and service of the summary judgment application. The respondent's use of a Chamber Summons to commence the claim was the wrong procedure, and the High Court erred in entering judgment on it.

Reasoning

The court examined Order XXXV rule 1, which applies 'in all suits where a plaintiff seeks judgement' for a liquidated demand where the defendant has appeared. Here there was no suit and no pleadings setting out the plaintiff's claim; the applicant had also filed no replying affidavit. A Chamber Summons is a vehicle for interlocutory applications only. The High Court, in sympathising with the respondent, accepted a wrong procedure for entering judgment upon which execution could follow.

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02

Whether stay of execution of the High Court order should be granted pending the intended appeal

Holding

Yes. The application for stay was allowed with costs in terms of prayer one, under Rule 5(2)(b) of the Court of Appeal Rules, the court being satisfied that the judgment below was entered under a wrong procedure and noting the respondent's financial hardship claims and the unexplained delay in prosecuting the appeal against taxation.

Reasoning

The applicant had retained Shs. 60,000/- out of damages, leading to taxation of his bill at Shs. 22,553/- and an order to refund Shs. 37,447/-. He had notified an intention to appeal against the taxation ruling but had not progressed it, causing unexplained delay and hardship to the respondent. Nevertheless, because the judgment of 26th January 1988 was founded on a procedurally defective application, the court found the High Court was wrong and allowed the stay in terms of prayer one with costs.

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Legal principles established

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  • A substantive claim cannot be commenced by Chamber Summons; Chamber Summons applications are confined to interlocutory matters in an existing suit, and judgment entered in their absence of pleadings is procedurally defective.
  • Summary judgment under Order 35 of the Civil Procedure Rules is available only where pleadings exist, the defendant has entered appearance but not filed a defence, and the application has been served on the defendant.

Court orders

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  1. 1.Leave granted to stay execution of the orders granted in the High Court in Miscellaneous Civil Application No. 360 of 1982 pending the hearing of the intended appeal, in terms of prayer one of the amended application filed on 16th March 1988
  2. 2.Costs of the application awarded to the applicant in terms of Rule 5(2)(b) of the Court of Appeal Rules
On appeal from
High Court of Kenya
Miscellaneous Civil Application No. 360 of 1982 (judgment entered 26th January 1988 on Chamber Summons filed 13th January 1988)
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (leave/stay pending intended appeal)

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, "Adala v Anjere [1988] KECA 130 (KLR)", Case Analysis (1988). Miscellaneous Civil Application (Court of Appeal, stay application arising from High Court Miscellaneous Civil Application No. 360 of 1982). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1988/130/eng@1988-07-06

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