Mitsubishi Corporation v Anthony Massawa
The bottom line
#Kenya's Court of Appeal ruled that judges cannot grant more than what an application asks for, and striking out a defence requires extreme caution.
What this practically means
#Executive summary
#Key legal issues
#Scope of the relief granted on a striking-out application
The entry of judgment could not stand because judgment was not sought; the prayer pursued only sought striking out of the defence
Counsel for the respondent expressly pursued only the first prayer, which sought striking out without entry of judgment. Unlike the Peruvian Guano situation, there was no implied request for other proper orders. The Judge therefore exceeded the application by entering judgment, an error that coloured the whole ruling.
Exercise of summary striking-out jurisdiction
The striking out could not stand because the application and affidavit were imprecise and confused, lacking the clear and unambiguous circumstances required for so drastic a remedy
The application amalgamated the separate grounds under r 13(1)(b) and (d), and the supporting affidavit relied on an inapplicable contract and imprecise averments. The requisite clear, unambiguous and deserving circumstances were absent, and the Judge failed to act with the extreme caution required.
Resolution of triable issues on affidavit evidence
The Judge erred in delving into the facts, including the commission claims and the applicable employment contract, which raised triable issues that could not be summarily rejected
The defence had put the commission claims to strict proof; whether the respondent negotiated the contracts and his entitlement to commission were triable issues. Following Wenlock v Haloney as approved in D.T. Dobie, the summary jurisdiction is not for protracted examination of documents and facts on affidavits alone.
Legal principles established
#- A court cannot grant relief not sought; an application to strike out a defence does not authorize entry of judgment unless judgment is asked for or impliedly sought
- The summary remedy of striking out pleadings must be exercised only in the clearest of cases and with extreme caution
- Where a defence is alleged to disclose no reasonable defence, no affidavit evidence is admissible
- A judge on a striking-out application must not conduct a minute examination of documents and facts, which usurps the trial judge's role
Court orders
#- 1.The appeal is allowed
- 2.The ruling and order of the learned Judge are set aside
- 3.The suit is remitted to the High Court for hearing
- 4.The appellant is awarded costs of the appeal and of the application before the learned Judge
- On appeal from
- High Court
- Jurisdiction invoked
- First appellate jurisdiction over an appeal from the High Court (ruling under Order 6 r 13(1)(b) of the Civil Procedure Rules)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mitsubishi Corporation v Anthony Massawa", Case Analysis (1996). Civil Appeal No. 40 of 1992. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1996/218/eng@1996-03-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.