KIRINYAGA COUNTY COUNCIL v KIMMI HOUSING CO-OPERATIVE SOCIETY LIMITED [2007] KECA 172 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that summary judgment requires a clear legal claim and no genuine disputes—in this case, the council deserved a 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 the plaint disclosed a cause of action known in law
- 2.Whether the superior court erred in entering summary judgment despite genuine triable issues
- 3.Whether the respondent was allocated any specific plot at Baricho Township in accordance with the Local Government Act
- 4.Whether the further affidavit filed without leave ought to have been relied upon
- 5.Whether the claim amount was truly undisputed
Key legal issues
#Whether the plaint disclosed a cause of action known in law
The cause of action was not easily discernible; whether the plaint disclosed a known cause of action was a genuine issue that should have gone to trial.
The court analysed the pleadings, affidavits and submissions and found difficulty appreciating the respondent's cause of action. The suit variously invoked actionable representation, fraudulent misrepresentation (conceded not pleaded) and unjust enrichment. The court held this ambiguity was itself a triable issue that the summary judgment process could not resolve.
Whether the respondent was allocated a specific plot in accordance with the Local Government Act
Whether the respondent was allocated any specific plot by the appellant in accordance with the Local Government Act was a genuine triable issue.
The allotment letter was addressed to Ndia Co-operative Society Ltd, not the respondent, and no documentary evidence established they were the same entity. The relevant committee minutes were not produced, the County Clerk deponed the allocation was a nullity and ultra vires the Local Government Act, and the plot number was inconsistently described as No. 96, 97 or 98.
Whether the claim amount was undisputed
The superior court's finding that the amount claimed was not disputed was erroneous; damages are deemed traversed unless specifically admitted.
The appellant had deponed that no valid invoices were annexed and questioned whether the professional services were rendered. The court held that allegations of damage and quantum are deemed traversed unless specifically admitted under Order VI Rule 9(4) CPR, so the issue should have gone to trial.
Whether the respondent acted reasonably in expending money before obtaining a valid document of title
Whether the respondent acted reasonably in expending money on professionals before obtaining a valid lease was a triable issue.
The court found it unclear when the respondent engaged the professionals or discovered the appellant had no plot to convey. The architectural drawings were done in 1987, yet the respondent held only a letter of allotment. The reasonableness of expending funds before obtaining a lease was therefore a fit issue for trial.
Legal principles established
#- Summary judgment will only be entered where the plaintiff demonstrates the defendant is truly liable and the defence raises no genuine triable issue; otherwise the defendant must be given unconditional leave to defend.
- A further affidavit filed without leave of the court cannot be relied upon by the court hearing a summary judgment application.
- An allegation of damage and of the amount of damages is deemed traversed unless specifically admitted.
Court orders
#- 1.Appeal allowed
- 2.Ruling and decree of the superior court dated 29th September 1998 entering summary judgment against the appellant set aside
- 3.Substituted order dismissing the respondent's application for summary judgment dated 17th December 1992
- 4.Appellant awarded costs of the appeal and of the dismissed motion
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 6815 of 1991
- Jurisdiction invoked
- First appeal from the High Court under the Court of Appeal's appellate jurisdiction (specific provision not stated in the judgment)
Relief refused
#Summary judgment for the respondent in the sum of Kshs.1,630,899/15 with interest and costs
Genuine triable issues existed; the appellant should have been given unconditional leave to defend
Costs
The appellant is entitled to the costs of the appeal and of the dismissed motion
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.
In the result, we allow the appeal and set aside the ruling and decree of the superior court dated 29th September, 1998 entering summary judgment against the appellant and substitute, therefor, an order dismissing the respondent’s application for summary judgment dated 17th December, 1992.
we are persuaded that the appellant had shown that there were genuine triable issues fit for trial and that it should have been given unconditional leave to defend.
The superior court should not have relied on the further affidavit filed without leave.
An allegation that a party has suffered damage and any allegation as to the amount of damages is deemed to have been transversed unless specifically admitted (see Order VI Rule 9 (4) CPR).
Indeed, the issue whether or not the plaint disclosed a cause of action known in law was a genuine one and should have gone for trial.
Issues in the judgment
#The judgment inconsistently records the claimed amount, stating Shs.1,630,899/15 in places but Shs.1,630,889/15 in the quotation of the trial judge's finding
The coram listing misspells the title of E. M. Githinji as 'JDUGE OF APPEAL'
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Wilson Amuge Lagat v Kiprono Katteberewo & 4 others [2015] KEELC 595 (KLR)[2015] KEELC 595 (KLR)4 Mar 2015
Cite this brief
#Cite this brief
Caselaw, "KIRINYAGA COUNTY COUNCIL v KIMMI HOUSING CO-OPERATIVE SOCIETY LIMITED [2007] KECA 172 (KLR)", Case Analysis (2007). Civil Appeal 151 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/172/eng@2007-12-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.