Fremar Construction Co. Ltd v Minakshi Navin Shah [2005] KECA 101 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a defence which merely denies terms of a signed written agreement can be struck out entirely without trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the defence's denial of clause 10 of the agreement (that the purchaser was to finance up to Kshs 6,500,000 of the price through a loan) raised a triable issue
It did not. The purchaser did not deny the existence or proper execution of the written agreement, which was exhibited with the application; clause 10 expressly recorded the loan financing. Against that unchallenged documentary provision, the denial was hollow and a non-issue.
The Court observed that the averment was borne out by clause 10 of the agreement, that the purchaser never denied the agreement's existence or proper execution, and that the document was exhibited with the striking-out application. The facts in the supporting affidavit were uncontroverted both below and on appeal. Trials, the Court stressed, are not held merely to allow oral evidence on issues that are not discernible; wasting judicial time on such a trial would be farcial. The denial therefore raised nothing fit for trial.
Whether a formal 21-day completion notice was a prerequisite to the vendor's suit where the agreement made time of the essence
It was not. The Law Society Conditions of Sale completion-notice regime (condition 4, sub-condition 7) applies only where no special condition makes time of the essence; here clauses 4 and 10 of the agreement expressly made time of the essence and the conditions were excluded.
The agreement was made subject to the Law Society Conditions of Sale (1989 Edition) only in so far as they were not inconsistent with its own conditions. Sub-condition 7 of condition 4 governs completion notices only 'unless a Special Condition provides that time is of the essence'. Because the parties consciously provided in clauses 4 and 10 that time was of the essence, the plea for a completion notice was self-serving and raised a non-issue; the pleading could not stand.
The proper approach to an application to strike out a defence under Order 6 rule 13(1)(b), (c) and (d) of the Civil Procedure Rules
Striking out is a drastic remedy to be exercised with great caution and only in clear cases, but the power exists, under the rules and inherently, to reject manifestly frivolous and vexatious pleadings and to protect the court from abuse of its process; a sham defence must not remain on the record.
The Court acknowledged its settled line of authority that striking out is drastic and to be exercised cautiously, a principle the learned Judge below had in mind. It held, however, that the power is clearly donated in the rules and exists inherently in the interests of justice. Weighing the defence against the uncontroverted affidavits, it found no issue fairly fit for open trial; the pleadings were frivolous and vexatious and would unduly delay the vendor's just remedies.
Legal principles established
#- Striking out a pleading is a drastic remedy which must be exercised with great caution and only in clear cases, but the power - donated by the rules and existing inherently - must be used in the interests of justice to reject manifestly frivolous and vexatious pleadings and to protect the court from abuse of its process.
- A defence which is a sham, or which raises no discernible triable issue, must not be left on the record, because it causes undue delay and expense in determining the suit.
- A bare denial of a term contained in a written agreement whose existence and execution is not denied, and which is exhibited, raises no triable issue and cannot save a defence from being struck out.
- Where parties to a sale agreement expressly provide that time is of the essence and the Law Society Conditions of Sale are expressly excluded, no completion notice is a precondition to enforcement.
Court orders
#- 1.Appeal allowed and the ruling of the superior court (Osiemo J, dated 12th February 2002) set aside
- 2.Order substituted allowing the appellant's chamber summons dated 16th October 2001 (the application to strike out the defence), with costs thereof to the appellant
- 3.Costs of the appeal awarded to the appellant
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 206 of 2001
- Jurisdiction invoked
- Not expressly invoked in the judgment; the appeal is from an interlocutory ruling of the High Court of Kenya at Nairobi, the underlying application having been brought under Order 6 rule 13(1)(b), (c) and (d) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fremar Construction Co. Ltd v Minakshi Navin Shah [2005] KECA 101 (KLR)", Case Analysis (2005). Civil Appeal 85 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/101/eng@2005-10-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.