Lucy Momanyi T/A L.N. Momanyi & Company v Nurein M.A. Hatimy & another [2003] KECA 184 (KLR)
The bottom line
#Kenya's Court of Appeal ruled a judge cannot award money a lawsuit never claimed, and cases with genuine disputes must go to full trial.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether, in an application brought under orders XII and XXXV of the Civil Procedure Rules, judgment can be entered for a sum which was neither sued for nor prayed for in the plaint.
- 2.Whether the appellant's defence was frivolous or disclosed substantial triable issues entitling her to unconditional leave to defend.
- 3.Whether the allegations of negligence and misrepresentation had to be proved through oral as opposed to affidavit evidence before any order for refund of the deposit could be made.
- 4.Whether the alleged admission was plain and obvious enough to support judgment on admission where liability to pay was not admitted.
- 5.Whether, in mixed claims, summary judgment can be entered only on the liquidated claim where it is severable from the other claims.
- 6.Whether the affidavit of the respondents' advocate was competent under the Civil Procedure Rules as evidence of the facts constituting the cause of action.
Key legal issues
#Whether judgment on admission or summary judgment can be entered for a sum neither sued for nor prayed for in the plaint
No. The plaint ought to have been amended to substitute the admitted sum of Kshs 80,000 for the Kshs 60,000 sued for; absent that amendment, no summary judgment or judgment on admission could properly be entered for the unpleaded sum. The learned judge was wrong in entering judgment on admission for the Kshs 2,080,000.
Applications under orders XII rule 6 and XXXV rule 1 are ordinarily for recovery of what is prayed for in the plaint. The plaint pleaded fees of Kshs 60,000, yet the defence disclosed an admitted sum of Kshs 80,000, and the application sought Kshs 2,080,000. Because judgment was sought on a figure neither sued for nor prayed for, the plaint had to be amended first; without amendment, neither summary judgment nor judgment on admission could properly be entered for that sum.
Whether the defence disclosed triable issues entitling the appellant to unconditional leave to defend
Yes. The defence was not frivolous and disclosed substantial triable issues; leave to defend ought to have been granted unconditionally. Once triable issues are disclosed there is no discretion to be exercised.
The defence raised the circumstances of the Kshs 2,080,000 deposit in Kenya Finance Bank, made with the respondents' knowledge and accompaniment, and the bank's subsequent liquidation. Since the refund claim was founded on alleged negligence and misrepresentation, which must be proved by oral evidence, judgment could not be entered on affidavits. The judge also mixed up dates, treating the 90-day completion period as running from January 6, 1996 rather than July 22, 1996, and found the appellant disputed only Kshs 388,000, a figure plucked from the blues, when she disputed the whole liquidated amount.
Whether the alleged admission met the required standard for judgment on admission
No. Admissions must be plain and obvious, obvious on their face and leave no room for doubt; the standard applies equally in tort as in contract. Liability to pay was not admitted here, so judgment on admission was unwarranted.
Although the complaint sounded in negligent conduct in tort rather than contract, the court held the Choitram standard governs both spheres: admissions must be plain and obvious and must leave no room for doubt that the parties passed out of negotiations onto a definite contract. The alleged admission in the appellant's letter of August 29, 1996 of holding the deposit did not meet that threshold while the circumstances of the deposit, tied to contested allegations of negligence and misrepresentation, remained in dispute.
Whether summary judgment could be entered on the liquidated claim in a mixed claim
Only where the liquidated claim is severable from the other claims. Here the deposit of the new sum was intertwined with the contested allegations of negligence and misrepresentation, so the liquidated claim could not be split off for judgment without a trial.
Endorsing Gupta v Continental Builders as restated in Trust Bank v Investec, the court held that in mixed claims summary judgment may be entered only on the liquidated claim, and only where it can be dealt with separately without doing any violence to the other claims. In this case the deposit of the new sum in Kenya Finance Bank was very much intertwined with the allegations of negligence and misrepresentation, so order XII could not apply: there must be admission of facts entitling the plaintiff to judgment without waiting for determination of any other question between the parties.
Whether the affidavit of the respondents' advocate was competent in support of the application
No. An affidavit of an advocate is not evidence of someone who can swear positively to the facts constituting the cause of action; Mr Master conceded as much, undermining the evidentiary foundation of the application.
The provisions invoked require evidence of someone who can swear positively to the facts constituting the cause of action. The application was supported by the affidavit of Mr Master, the respondents' advocate, who deponed to the appellant's letter of August 29, 1996. The court agreed that an advocate cannot positively swear to the facts constituting the cause of action, a concession counsel made, so the supporting affidavit was incompetent or inadmissible for the purposes of the summary judgment application.
Legal principles established
#- Summary judgment or judgment on admission may not be entered for a sum that is neither sued for nor prayed for in the plaint; the plaint must first be amended to substitute the admitted sum.
- Where a defendant discloses triable issues in response to an application for summary judgment, the court has no discretion and must grant unconditional leave to defend.
- In mixed claims, summary judgment can be entered only on the liquidated claim, and only where that claim is severable from the rest and can be dealt with separately without doing violence to the other claims.
- The rule that admissions must be plain and obvious, and leave no room for doubt, applies with equal force to claims in tort as to claims in contract.
- Allegations of negligence and misrepresentation that found a claim for refund must be proved through oral, not affidavit, evidence before judgment can be entered.
Court orders
#- 1.Appeal allowed with costs.
- 2.The ruling and preliminary decree of the superior court delivered on October 14, 1997 set aside.
- 3.The 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 (referred to in the judgment as 'the superior court')
- Jurisdiction invoked
- Not expressly stated in the judgment. The matter is an appeal to the Court of Appeal against a ruling and preliminary decree of the superior court; no constitutional or statutory provision conferring appellate jurisdiction is cited.
Relief refused
#Summary judgment / judgment on admission for Kshs 2,080,000 against the appellant sought by the respondents' application dated May 21, 1997
The defence disclosed substantial triable issues; liability to pay was not admitted; the allegations of negligence and misrepresentation required proof by oral evidence and were intertwined with the deposit; and the affidavit of the respondents' advocate was incompetent.
Judgment on admission in respect of the admitted fees of Kshs 80,000 (as distinct from the Kshs 60,000 sued for) without prior amendment of the plaint
The admitted sum was neither sued for nor prayed for in the plaint; the plaint ought first to have been amended to substitute the admitted sum before any judgment on admission could properly be entered.
Costs
Appeal allowed with costs to the appellant; the ruling and preliminary decree of October 14, 1997 set aside; the respondents' application dated May 21, 1997 dismissed with costs: '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.'
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.
For order XII to apply there must be admission of facts, which entitle the plaintiff to apply for judgment without waiting for determination of any other question between the parties.
It seems to us that the plaint ought to have been amended to substitute the admitted sum for that sued for and in the absence of that amendment no summary or judgment on admission could properly be entered in respect of that sum.
There is no discretion to be exercised if triable issues have been disclosed in an application for summary judgment.
Summary judgment can only be entered in mixed claims such as in the present case where one of those claims is liquidated and severable from the rest of the claims.
We see merit in this contention because the deposit of the new sum in the bank is very much intertwined with the allegations of negligence and misrepresentation.
we agree with Mr Mabeya, counsel for the appellant, that those allegations must be proved through oral as opposed to affidavit evidence as happened before the learned judge
We agree that an affidavit of an advocate is not of someone who can positively swear to the facts that constitute the cause of action in this case and Mr Master concedes as much.
Issues in the judgment
#The judgment as supplied does not state the names of the parties, the suit number or any citation; the parties are identified only by their procedural roles, which impedes reliable identification of the case in the corpus.
The application is described as brought under orders XII rule 6 and XXXV rule 1 of the Civil Procedure Rules, but the discussion of the supporting affidavit's incompetence attributes the relevant requirement to order XXV, which appears to be a typographical or drafting inconsistency in the rule references.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lucy Momanyi T/A L.N. Momanyi & Company v Nurein M.A. Hatimy & another [2003] KECA 184 (KLR)", Case Analysis (2003). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2003/184/eng@2003-08-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.