FRANCIS KAMANDE v VANGUARD ELECTRICAL SERVICES LTD [1998] KECA 33 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a defence raising genuine disputes cannot be struck out just because the other side calls it untrue.
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 learned trial judge erred in refusing to strike out the respondent's defence and counterclaim as evasive and designed to conceal and obscure the real issues, thereby delaying the fair trial of the suit
- 2.Whether the learned trial judge erred in law by deciding the application on the basis of matters not canvassed before him, namely whether the application should have been made under Order XXXV of the Civil Procedure Rules
Key legal issues
#Whether the defence and counterclaim should be struck out under Order VI rule 13(1)(c) as prejudicing, embarrassing or delaying the fair trial
The appeal fails; the defence raised a relevant defence of failure of consideration and a counterclaim for refund, and counsel did not demonstrate how the pleading offended the rules of pleadings.
The court applied the principle that a pleading is embarrassing only where it is unclear what case the opposite party must meet. A defence raising relevant issues cannot be struck out merely because the opposing party declares it untrue. The defence pleaded failure of consideration and misrepresentation regarding payment of customs dues, and counterclaimed for refund of money paid under a mistake of fact and for loss and damage. The trial judge was therefore justified in refusing to strike it out.
Whether the trial judge erred by considering whether the application should have been brought under Order XXXV
No error; the judge did not hold that the application should have been made under Order XXXV, only observed that counsel had approached it as if it were a summary judgment application, which it was not.
The court found that the second ground of appeal mischaracterised the ruling. The trial judge never decided that the application should have been brought under Order XXXV; he merely noted that both counsel had approached the application as one for summary judgment when it was in fact an application to strike out a pleading. There was therefore no decision on matters not canvassed before him.
The appellant's locus standi as donee of a power of attorney
The appellant's locus standi is in doubt; a donee of a power of attorney cannot sue in his own name for a debt owed to the donor absent a proper assignment of the debt.
Although the point was not pleaded by the respondent, the court observed that a point of law may be considered even absent a pleading, and that the respondent could still apply to amend its pleadings since the suit remained pending. The observation was obiter commentary, as the appeal was dismissed on the striking-out issue.
Legal principles established
#- A pleading is embarrassing only if it is so drawn that it is not clear what case the opposite party has to meet at the trial; a defence raising relevant issues cannot be struck out merely because the other party asserts it is untrue.
- A suit or defence should not be dismissed unless it is plainly and obviously hopeless and beyond redemption and incurable by amendment.
- A point of law may be considered by the court even in the absence of a pleading raising it.
- A donee of a power of attorney cannot sue in his own right and name to recover a debt owed to the donor unless there is a proper assignment of the debt in his favour.
Court orders
#- 1.The appeal is dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 3395 of 1995
- Jurisdiction invoked
- First appeal to the Court of Appeal from the ruling and orders of the High Court (statutory appeal under the Court's appellate jurisdiction)
Relief refused
#Striking out of the respondent's defence and counterclaim
The defence raised a relevant defence of failure of consideration and a counterclaim for refund of money paid under a mistake of fact; counsel failed to show how the pleading offended the rules of pleadings
Costs
The appeal is dismissed with costs to the respondent
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.
A pleading is embarrassing if it is so drawn that it is not clear what case the opposite party has to meet at the trial.
No suit ought to be dismissed unless it appears so hopeless that plainly and obviously discloses no cause of action and is so weak as to be beyond redemption and incurable by amendment.
The summary procedure under this rule can only be adopted when it can be clearly seen that a claim or answer is on the face of it "obviously unsustainable."
In the end we do not find any merit in the appeal and the same is hereby dismissed with costs to the respondents.
Issues in the judgment
#The deponent of the supporting affidavit is referred to inconsistently as 'Francis Nganga' and 'Francis Kimani'/'Kimani Nganga' in the judgment, and the sum claimed appears variously as 'shs. 500,000/=' and 'shs. 500,00/='.
The judgment is dated 3rd April 1998 at the close, while the header records the appeal from a ruling dated 2nd July 1996 with the year of the ruling's date line left incomplete ('dated the 2nd day of July,').
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Peter Kaili v Malken Housing Systems Limited [2014] KEELRC 14 (KLR)[2014] KEELRC 14 (KLR)30 Jul 2014applied
Cite this brief
#Cite this brief
Caselaw, "FRANCIS KAMANDE v VANGUARD ELECTRICAL SERVICES LTD [1998] KECA 33 (KLR)", Case Analysis (1998). Civil Appeal 152 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/33/eng@1998-04-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.