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Court of AppealAllowedCivil Appeal No. 32 of 2003· [2006] KECA 36 (KLR)

Kisii Farmers Co-operative Union Limited v Sanjay Natwarlal chaunhan t/a Oriental Motors [2006] KECA 36 (KLR)

Court of Appeal of Kenya
24 November 2006
Philip Kiptoo TunoiP.K. TunoiEGE.M. GithinjiJOJ.W. Onyango-Otieno
2,051 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled a lawsuit over defective trucks should go to trial, confirming that a criminal acquittal does not end a civil claim.

What this practically means

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Executive summary

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The appellant, Kisii Farmers Co-operative Union Limited, sued the respondent for Kshs.10,400,000 plus interest and general damages, alleging breach of a written agreement for the supply of two FUSO Trucks Model 657 of 10 tonnes each. It pleaded that the respondent instead delivered Model 615 trucks of 8 tonnes each, with identical chassis numbers, unmerchantable and unfit for purpose. The respondent had earlier been charged with obtaining by false pretences in relation to one of the vehicles, with the appellant as complainant, and was acquitted under section 215 of the Criminal Procedure Code in December 2001. Armed with that acquittal, the respondent applied under Order VI rule 13(1)(b) and (d) of the Civil Procedure Rules to strike out the suit as frivolous, vexatious and an abuse of process. Birech, Commissioner of Assize, allowed the application and struck out the suit with costs on 3rd December 2002, finding no triable issue. The Court of Appeal (Tunoi, Githinji and Onyango-Otieno, JJA) allowed the appeal. It held that the pleadings raised clear factual issues - chassis numbers, merchantability, fitness for purpose, model and tonnage - which required a full hearing and could not be resolved on affidavit evidence. Applying the DT Dobie principle, the court held the striking-out power must be exercised with restraint, and that an acquittal in a criminal case, given the different standards of proof, could only be adduced as evidence in the civil case and could not justify striking it out. The ruling of 3rd December 2002 was set aside and the striking-out application dismissed with costs to the appellant.

Key legal issues

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01

Exercise of the striking-out jurisdiction under Order VI rule 13(1)(b) and (d)

Holding

The suit disclosed triable issues and was not scandalous, frivolous, vexatious or an abuse of process; the striking-out was improper.

Reasoning

The pleadings raised factual disputes - same chassis number on the vehicles, unmerchantable quality, unfitness for purpose, and disagreement over model and tonnage - which required ventilation at a full hearing in open court and could not be resolved by affidavit evidence. The striking-out power must be exercised with restraint; it is better to allow a weak case to go to trial than to invoke the guillotine process, per the DT Dobie principle.

p. 4
02

Effect of the respondent's acquittal in the criminal case on the civil claim

Holding

The acquittal could not justify striking out the civil suit; it could only be adduced as part of the evidence in the civil case.

Reasoning

The respondent was acquitted under section 215 of the Criminal Procedure Code of obtaining by false pretences concerning one of the vehicles, and then applied to strike out the civil suit relying on that acquittal. The court held that the differing standards of proof in civil and criminal cases mean a criminal acquittal does not terminate a parallel civil claim.

p. 4

Legal principles established

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  • The power to strike out a pleading is one that courts must exercise with great restraint; a suit showing even a semblance of a cause of action, curable by amendment, should go to trial rather than be summarily dismissed.
  • Where pleadings raise clear factual issues that cannot be resolved on affidavit evidence, a suit cannot be struck out as frivolous, vexatious or an abuse of process.
  • An acquittal in a criminal case does not bar or determine a related civil suit; the differing standards of proof mean the criminal outcome can only be adduced as part of the evidence in the civil case.

Court orders

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  1. 1.Appeal allowed with costs
  2. 2.Decision of the superior court in the ruling delivered on 3rd December 2002 set aside
  3. 3.The application (Chamber Summons dated 18th June 2002) dismissed with costs to the appellant

Authorities

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Legislation

  • Civil Procedure RulesOrder VI rule 13(1)(b)
  • Civil Procedure RulesOrder VI rule 13(1)(d)
  • Criminal Procedure CodeSection 215

Cases cited (1)

  • DT. DOBIE & COMPANY (KENYA) LTD. VS. MUCHINA
    (1982) KLR 1
On appeal from
High Court of Kenya at Kisii
H.C.C. Suit No. 78 of 2000
Jurisdiction invoked
First appellate jurisdiction over appeals from the High Court (appeal from ruling of the High Court at Kisii dated 3rd December 2002)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kisii Farmers Co-operative Union Limited v Sanjay Natwarlal chaunhan t/a Oriental Motors [2006] KECA 36 (KLR)", Case Analysis (2006). Civil Appeal No. 32 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/36/eng@2006-11-24

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