East Africa Packaging Industries Limited v Zoeb Alibhai
The bottom line
#Kenya's Court of Appeal ruled that summary judgment is only for hopeless defences; if a defendant raises a genuine dispute, they get their day in court.
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 trial judge erred in rejecting the further affidavits filed pursuant to his own order of 8 May 1995 granting leave to file and exchange further affidavits.
- 2.Whether the trial judge erred in striking out paragraph 7 of J.C. Small's affidavit for failure to identify with sufficient particularity the sources of information and belief.
- 3.Whether any claim by the respondent in respect of the Staff Retirement Benefits Scheme could only lie against the trustees of the scheme and not against the appellant.
- 4.Whether the respondent was still in the appellant's employment after 15 February 1995 and whether the appellant could lawfully summarily dismiss him on 24/25 February 1995.
- 5.Whether the sum of Shs 23,267.25 for publication of a corrective notice was recoverable by summary judgment after the defamation claim was abandoned.
- 6.Whether the defence raised bona fide triable issues entitling the appellant to unconditional leave to defend.
Key legal issues
#Rejection of further affidavits filed with leave
The trial judge erred in rejecting the further affidavits because he had himself granted leave on 8 May 1995 for both parties to file and exchange further affidavits.
The consent order of 8 May 1995 expressly permitted both parties to file and exchange further affidavits before the hearing on 16 May 1995. Both parties complied. The judge could not thereafter treat the affidavits as filed without leave; counsel failed to draw his attention to his own order. All three judges of appeal treated the exclusion as a clear error and took the affidavits into account in determining the appeal.
Sufficiency of disclosure of sources in an affidavit on information and belief
Identifying the sources as the company's sales staff and customers was sufficient compliance with the proviso to Order 18 rule 3; striking out paragraph 7 of Small's affidavit was erroneous.
The proviso to Order 18 rule 3 permits statements of information and belief in interlocutory proceedings provided the source and grounds of belief are shown. Naming individuals is desirable but not necessary; the source was disclosed. If the respondent wanted more detail, the proper course was to apply for cross-examination of the deponent. Striking out the paragraph destroyed the anchor of the appellant's case and took too technical a view.
Claim for retirement benefits against employer or trustees
Whether the respondent's claim for benefits under the Staff Retirement Benefits Scheme lies against the trustees rather than the employer is a triable issue that cannot be determined summarily.
The point was pleaded in the defence, deponed to in Small's affidavit, and argued before the trial judge, yet the lengthy ruling made no reference to it. The Trust Deed and Rules required careful interpretation. If decided in the appellant's favour it would cover a substantial part of the claim. Bosire Ag JA declined to express even a tentative view, since doing so might trespass on the trial court's jurisdiction.
Whether the respondent was still in employment when purportedly summarily dismissed
Whether the employment ended on 15/16 February 1995 or on 28 February 1995, and whether summary dismissal during terminal leave was possible, were arguable issues requiring oral evidence.
The resignation letter requested forfeiture of earned leave to shorten the notice period, but the acceptance letter was silent on forfeiture and paid full February salary. The parties' intentions were not explicit in the documents; matters were discussed that were never reduced to writing. Bosire Ag JA applied Nicholls LJ's analysis in Delaney v Staples distinguishing pay in lieu of notice as damages from wages under a subsisting contract, and held the matters required investigation at trial.
Award of publication expenses under the summary procedure
Summary judgment for Shs 23,267.25 as publication expenses was improper because the defamation claim on which it was pegged had been abandoned and liability was never established or admitted.
The claim was tied to the abandoned defamation claim; without proof of liability the amount was of doubtful recoverability. A defamation claim is not suitable for summary disposal under Order XXXV rule 1. The issue whether the expenses could be pursued independently and justified could not be determined without oral evidence. All three judges allowed this ground.
Whether the defence raised triable issues entitling unconditional leave to defend
The defences that the retirement benefits claim did not lie against the appellant and that the public notice was not defamatory were triable issues; the appellant should have been given unconditional leave to defend.
The summary procedure under Order XXXV applies only in plain and obvious cases where the defence is a sham. Here the documents did not resolve the parties' intentions on termination, the trustees point required interpretation of the trust deed, and the publication expenses claim required proof of defamation liability. Once bona fide issues were identified, the court should not resolve them on affidavit evidence.
Legal principles established
#- Where a court has granted leave to file further affidavits, it cannot later reject those affidavits on the ground that they were filed without leave.
- In interlocutory proceedings, an affidavit deposing to information and belief need not name individual sources; identifying the class of persons (e.g. staff and customers) suffices, and the remedy for dissatisfaction is cross-examination of the deponent.
- Failure to disclose sources of information with particularity weakens the probative value of the information but does not render the affidavit paragraph defective.
- A claim for defamation, or special damages pegged to defamation, is not relief that can be dealt with summarily under Order XXXV rule 1 in the absence of proof of or admission of liability.
- Where a bona fide triable issue is raised, the defendant must be given unconditional leave to defend; summary judgment is reserved for sham defences.
- Once a bona fide issue has been identified, the court should refrain from resolving it on affidavit evidence.
- The burden on a plaintiff seeking summary judgment is heavier than that on a defendant to disclose a good defence; a defendant need only show an arguable defence.
Court orders
#- 1.Appeal allowed.
- 2.Judgment and decree of the superior court set aside.
- 3.Appellant's defence reinstated/restored.
- 4.Appellant granted unconditional leave to enter and defend the suit.
- 5.Respondent's application for summary judgment dismissed with costs to be paid forthwith.
- 6.Appellant awarded the costs of the appeal.
- 7.Per Pall JA: all moneys paid by the appellant in pursuance of the decree of the superior court to be paid back by the respondent to the appellant.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Kwach JA wrote the first judgment. He held the trial judge was plainly wrong to reject further affidavits filed pursuant to his own leave order of 8 May 1995; that striking out paragraph 7 of Small's affidavit took too technical a view since identifying 'sales staff and customers' sufficiently complied with Order 18 rule 3(1); that the claim against the employer rather than the trustees of the retirement scheme was a triable issue; that the award of Shs 23,267.25 for the publication was unsustainable once defamation was abandoned and was not amenable to summary procedure; and that the defence raised triable issues entitling the appellant to unconditional leave to defend. He would allow the appeal, set aside the ruling and decree, restore the defence, dismiss the summary judgment application with costs to be paid forthwith, and award the appellant the costs of the appeal.
I would allow this appeal, set aside the ruling and decree of the superior court, restore the appellant's defence and grant the appellant unconditional leave to enter and defend.p. 4
Wrote the judgment
Pall JA wrote a separate concurring judgment reaching the same result. He held the trial judge erred in striking out paragraph 7 of Small's affidavit because disclosure of 'sales staff and customers' satisfied the proviso to Order 18 rule 3, and the respondent could have sought cross-examination; that the judge erred in rejecting further affidavits filed under his own leave; that whether the respondent was still in employment after 15 February 1995 and whether summary dismissal was possible were arguable issues; that misrepresentation was properly rejected as unpleaded; that the trustees issue was an important issue the judge failed to consider; and that judgment for the publication expenses was erroneous absent proof of defamation liability. He allowed the appeal, granted unconditional leave to defend, awarded costs, and ordered repayment of any moneys paid under the decree.
Finally, therefore I would allow the appeal, set aside the judgement and decree of the superior court dismiss the respondent's application for summary judgment and grant unconditional leave to the appellant to defend.p. 8
Wrote the judgment
Bosire Ag JA wrote a separate concurring judgment. He held the trial judge was clearly wrong to reject further affidavits he had earlier permitted; that the central question whether employment ended on 16 February or 28 February 1995 required oral evidence and cross-examination, drawing on Delaney v Staples and Nicholls LJ's analysis of pay in lieu of notice and garden leave; that the trustees issue should be left to the trial court; that summary judgment was improperly given on the publication expenses claim; and that failure to disclose sources of information with particularity weakens probative value but does not render an affidavit paragraph defective. He would allow the appeal, set aside the judgment, substitute unconditional leave to defend, and award the appellant costs of the motion and the appeal.
In the above circumstances and for the reasons I have endeavoured to give I come to the conclusion that summary judgement was improperly given.p. 14
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 1171 of 1995
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court under the Constitution and the Court of Appeal's appellate jurisdiction (specific provision not stated in the judgment).
Relief refused
#Confirmation of summary judgment for the respondent
The defence raised bona fide triable issues and the summary procedure was misapplied.
Recovery of Shs 23,267.25 publication expenses by summary procedure
The defamation claim had been abandoned and liability was not established; the claim required oral evidence.
Misrepresentation as a triable issue
Misrepresentation was not pleaded with particulars in the defence as required by Order VI rule 8.
Costs
Respondent's application for summary judgment dismissed with costs to be paid forthwith; appellant awarded the costs of the appeal (and, per Pall JA, the costs of the summary judgment application).
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.
As Judges of Appeal Pall and Bosire also agree, this appeal is allowed. The judgement and decree of the superior court is set aside, the appellant's defence is reinstated and the appellant is granted unconditional leave to enter and defend.
The respondent's application for summary judgement is dismissed with costs to be paid forthwith. The appellant will also have the costs of the appeal.
Having granted leave to the parties to file further affidavits, he had no basis for saying that these affidavits had been filed without leave.
although highly desirable but it is not necessary that the source of information should be identified by name.
It is meant to be applied in plain and obvious cases when the court is satisfied beyond peradventure that the defence is sham or not maintainable in law and no legitimate amendment can save it.
If a bona fide triable issue is raised the defendant must be given unconditional leave to defend but not so in a case in which the court feels justified in thinking that the defences raised are a sham.
has the effect of weakening the probative value of the information and may even render it worthless. It does not, in my view, render the relevant paragraph defective.
Issues in the judgment
#The judgment contains inconsistent figures for the same claim: the terminal benefits deduction is given as Shs 155,703.50 in most passages but as Shs 155,703.40 in Pall JA's judgment, and the publication expenses appear as Shs 23,267.25 in most passages but as Shs 23,276.25 in the respondent's affidavit as summarised by Kwach JA.
The date of the summary dismissal letter is given as 24th February 1995 in Kwach JA's judgment but as 25th February 1995 in Pall JA's and Bosire Ag JA's judgments.
Pall JA's judgment includes an order for repayment of moneys paid under the decree that does not appear in Kwach JA's statement of the court's final orders, creating uncertainty as to whether that order formed part of the court's disposition.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "East Africa Packaging Industries Limited v Zoeb Alibhai", Case Analysis (1997). Civil Appeal No. 124 of 1996. Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.