LUCY MOMANYI T/AL.N. MOMANYI & COMPANY v NUREIN M.A. HATIMY & ANOTHER [2003] KECA 3 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a defendant can't be denied trial where real disputes exist, even if some money appears admitted.
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 respondents were entitled to summary judgment on admission under Order XII rule 6 and Order XXXV rule 1 of the Civil Procedure Rules for Kshs.2,080,000/= notwithstanding the appellant's defence
- 2.Whether the appellant's defence raised triable issues that entitled her to unconditional leave to defend
- 3.Whether allegations of negligence and misrepresentation must be proved by oral rather than affidavit evidence before refund of the deposit can be ordered
- 4.Whether the affidavit of the respondents' advocate was competent evidence of the facts constituting the cause of action
- 5.Whether summary judgment could be entered in a mixed claim where the liquidated claim was not severable from the other claims
Key legal issues
#Entitlement to summary judgment on admission where liability is contested
Summary judgment on admission was wrongly granted because the appellant disputed the whole liquidated amount, which was intertwined with contested allegations of negligence and misrepresentation
The deposit whose refund was sought was tied to allegations of negligence and misrepresentation pleaded in the plaint. For Order XII to apply there must be an admission of facts entitling the plaintiff to judgment without waiting for determination of any other question. Here liability to pay was not admitted; the defence disclosed weighty triable issues requiring oral evidence, so the learned judge erred in entering summary judgment.
Effect of triable issues on the court's discretion
Once a prima facie triable issue is raised, there is no discretion: unconditional leave to defend must be granted
Relying on Osodo v Barclays Bank International Ltd, the court held that the disclosure of a triable question removes judicial discretion; the only course is to grant unconditional leave to defend. The defence here was not frivolous and disclosed substantial triable issues, particularly on negligence and misrepresentation which had to be proved through oral as opposed to affidavit evidence.
Severability in mixed claims
Summary judgment on the liquidated part of a mixed claim is only available where that claim is severable from the rest
Following Trust Bank Limited and Michael Muhindi v Investec Bank Limited and Gupta v Continental Builders Limited, the court held that in mixed claims the court may enter summary judgment only on the liquidated and severable part. Here the refund claim was not severable from the negligence and misrepresentation claims, so no partial summary judgment was possible.
Competence of the advocate's affidavit
The affidavit of the respondents' advocate was incompetent under Order XXV as he could not positively swear to the facts constituting the cause of action
Order XXV requires evidence of someone who can swear positively to the facts constituting the cause of action. The advocate's affidavit supporting the summary judgment application did not meet that standard, a point counsel for the respondents conceded. This further undermined the judgment entered on admission.
Legal principles established
#- Admissions supporting summary judgment must be plain, obvious and leave no room for doubt; the Choitram standard applies equally to tort as to contract claims
- Where a defendant on an application for summary judgment raises a prima facie triable issue, the court has no discretion and must grant unconditional leave to defend
- In mixed claims, summary judgment on a liquidated claim is only possible where that claim is severable from the other claims
- An affidavit of an advocate is not evidence by someone who can positively swear to the facts constituting the cause of action under Order XXV of the Civil Procedure Rules
Court orders
#- 1.Appeal allowed with costs
- 2.Ruling and preliminary decree of the superior court delivered on October 14, 1997 set aside
- 3.Respondents' application dated May 21, 1997 dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- H.C.C.C. No. 46 of 1997
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court (ruling and preliminary decree), Civil Appeal 139 of 2002
Relief refused
#Respondents' application for summary judgment on admission for Kshs.2,080,000/= under Orders XII rule 6 and XXXV rule 1
The defence raised substantial triable issues; liability was not admitted and the allegations of negligence and misrepresentation required proof by oral evidence
Costs
Appeal allowed with costs; respondents' application dated May 21, 1997 dismissed with costs
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.
This being our view of the matter we allow the appeal with costs, set aside the ruling and preliminary decree of the superior court delivered on October 14, 1997 and dismiss with costs the respondents' application dated May 21, 1997.
The learned Judge was, in the circumstances of this case, plainly wrong in granting the Application for summary judgment on admission where liability to Pay was not admitted.
Admissions have to be plain and obvious, as plain as a pikestaff and clearly readable because they must result in judgment being entered.
If upon an application for summary judgment a defendant is able to raise a prima facie triable issue as the appellant did in this case, there is no room for discretion.
It is quite clear from the averments in this defence that that defence is not frivolous and discloses substantial triable issues for which leave to defend ought to have been granted unconditionally.
Issues in the judgment
#The judgment contains typographical and transcription errors, e.g. inconsistent figures for the admitted fees ('Kshs.80, 000' as opposed to 'Kshs.60, 000/= claimed') and stray spacing in quoted passages
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (5)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- JAS v Republic (Criminal Appeal E078 of 2023) [2025] KECA 1338 (KLR)[2025] KECA 1338 (KLR)18 Jul 2025applied
- Ngure v Tear Fund (Employment and Labour Relations Petition E156 of 2022) [2023] KEELRC 1324 (KLR)[2023] KEELRC 1324 (KLR)4 May 2023
- Joseph Kiura Njagi v Republic [2016] KECA 20 (KLR)[2016] KECA 20 (KLR)9 Nov 2016applied
- Precast Portal Structure Limited v Riccardo Lizier,Pietro Langui,Ivrea Group & Catholic Archdiocese, Nairobi (? 1327 of 2007) (Environment and Land) [2015] KEELC 503 (KLR)[2015] KEELC 503 (KLR)22 Apr 2015
- BONIFACE KIONGO MUCHIRI & 6 others v REPUBLIC [2011] KECA 177 (KLR)[2011] KECA 177 (KLR)7 Jul 2011
Cite this brief
#Cite this brief
Caselaw, "LUCY MOMANYI T/AL.N. MOMANYI & COMPANY v NUREIN M.A. HATIMY & ANOTHER [2003] KECA 3 (KLR)", Case Analysis (2003). Civil Appeal 139 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2003/3/eng@2003-08-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.