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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal No 114 of 1998· [1999] KECA 180 (KLR)

Hems Group Trading Company Limited v Cotecna Inspection S.a.

Court of Appeal of Kenya
26 March 1999
1,749 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that a defence which merely denies liability without facts can be struck out, and judgment entered on liability.

What this practically means

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Executive summary

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The appellant, Hems Group Trading Company Limited, imported 1000 metric tons of soya beans from an American supplier and submitted an Import Declaration Form to the respondent, Cotecna Inspection S.A., a pre-shipment inspection agent, which issued a Clean Report of Findings certifying the goods acceptable as to quantity, quality and price. The goods delivered to Mombasa were allegedly partly rotten and non-compliant. The appellant sued for breach of contractual and statutory duty and moved under section 3A of the Civil Procedure Act and Orders 6, 12 and 35 of the Civil Procedure Rules for the defence to be struck out, judgment on admission, and summary judgment. Nambuye J dismissed the application, holding that the pleadings raised triable issues. On appeal, a three-judge bench of the Court of Appeal (Gicheru, Kwach and Tunoi JJA) held in a single judgment that the defence raised no triable issue on liability: the defendant had admitted receiving the IDF and proforma invoice and the inspection fee, and its attempt to contradict the CRF through an affidavit of a manager who neither inspected the goods nor issued the CRF was of no probative value, the CRF being a commercial document that speaks for itself. The appeal succeeded on the striking-out limb but failed on the admission and summary judgment limbs, no admissions being found and quantum requiring proof at trial. The Court set aside the ruling below, struck out specified paragraphs of the defence, entered judgment for the plaintiff on liability only, and awarded the plaintiff the costs of the motion and the appeal.

Key legal issues

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01

Whether the defence raised triable issues on liability

Holding

The defence raised no triable issue on liability; paragraphs 2, 3 (denials only), 4, 5, 6 and 7 were struck out and judgment entered for the plaintiff on liability only.

Reasoning

The defendant admitted receiving the IDF and proforma invoice containing the specifications and the payment covering preshipment inspection, so it could not deny a duty to inspect. The Clean Report of Findings certified inspection and acceptability as to quantity, quality and price. The only affidavit attempting to contradict the CRF was sworn by a manager who did not conduct the inspection or issue the CRF, and therefore carried no probative value. The defence was thus a bare denial on liability.

p. 3
02

Whether judgment could be entered on admission or summarily

Holding

No admissions entitling judgment under Order 12 were found, and the claim was unsuitable for summary judgment under Order 35; quantum remained for trial.

Reasoning

The court examined the defence and the correspondence and found no admission supporting judgment under Order 12 rule 6. Counsel for the plaintiff conceded the claim's nature made it inappropriate for summary judgment under Order 35. Because the plaintiff claimed general damages and substantial special damages, some relating to third-party payments, proof by evidence at trial was required; the appeal succeeded only on the striking-out limb.

p. 3

Legal principles established

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  • A defence that is a bare denial raising no triable issue on liability may be struck out under Order 6 rule 13(1)(c) and (d), and judgment may be entered on liability even where quantum remains for trial.
  • An affidavit speaking to an inspection or commercial document must be sworn by the person who made the inspection or issued the document; a deponent without personal knowledge has no probative value on that document.
  • A Clean Report of Findings, being a commercial document, speaks for itself and cannot be explained away by a deponent who did not issue it.

Court orders

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  1. 1.Appeal allowed; ruling and order of the learned Judge set aside
  2. 2.Substituted order allowing the plaintiff's application by striking out paragraphs 2, 3 (denials only), 4, 5, 6 and 7 of the defence
  3. 3.Judgment entered for the plaintiff on the issue of liability only
  4. 4.Plaintiff awarded the costs of the motion and the appeal
On appeal from
High Court of Kenya at Eldoret
H.C.C.C. No. 126 of 1997
Jurisdiction invoked
First appeal to the Court of Appeal against a ruling and order of the High Court (appeal as of right from the superior court's interlocutory decision)

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, "Hems Group Trading Company Limited v Cotecna Inspection S.a.", Case Analysis (1999). Civil Appeal No 114 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/180/eng@1999-03-26

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