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Court of AppealAllowedCivil Appeal No. 296 of 2004· [2010] KECA 397 (KLR)

Moi University v Vishva Bulders Limited

Court of Appeal of Kenya
18 February 2010
ROR.S.C. OmoloEOE.O. O'KubasuEGE.M. Githinji
2,578 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that a defendant must be allowed to defend a lawsuit if even one genuine disputed issue exists, overturning summary judgment against Moi University.

What this practically means

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Executive summary

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This is an appeal by Moi University against a ruling of the High Court at Eldoret (Omondi Tunya, J) delivered on 16th October 2002 granting Vishva Bulders Limited summary judgment under Order XXXV rules 1 and 2 of the Civil Procedure Rules. The underlying dispute arose from a 1990 building contract for a Faculty of Science Complex, with the claim ultimately pleaded at Shs.185,305,011.30. The appellant argued that its defence raised bona fide triable issues, including whether the Departmental Representative had authority to issue interim certificates, whether certificates Nos. 8 to 13 had been cancelled and/or reinstated, and whether the parties had agreed that no interest would be payable on delayed payments. The respondent maintained that the interim certificates created a debt justifying summary judgment and that the defence raised no triable issues. The Court of Appeal (Omolo, O'Kubasu and Githinji, JJ.A) restated the settled principle that if a defence raises even one bona fide triable issue the defendant must be given leave to defend, drawing on Hasmani, Patel, Postal Corporation of Kenya v Inamdar, Continental Butchery and Dhanjal Investments. It found serious triable issues in the defence and held that a triable issue need not be one that will succeed. The appeal was allowed; the decision and decree of the superior court were set aside and the suit remitted for trial, with the appellant awarded the costs of the appeal and of the summary judgment application below.

Key legal issues

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01

Whether the High Court was entitled to enter summary judgment under Order XXXV rules 1 and 2

Holding

The appeal was allowed because the appellant's defence raised serious triable issues - the authority of the Departmental Representative to issue interim certificates, the cancellation and possible reinstatement of certificates Nos. 8-13, and the question of interest on delayed payments - which should go to full trial.

Reasoning

The Court traced the settled principles on summary judgment from Hasmani through Patel to Postal Corporation, Continental Butchery and Dhanjal Investments. It noted the learned Judge treated the interim certificates as conclusive proof of indebtedness, but the dispute over the DR's jurisdiction, cancelled certificates and the alleged agreement that no interest be charged on delayed payments raised bona fide triable issues. Even one such issue required unconditional leave to defend, so summary judgment was wrongly entered and the decree was set aside with the suit remitted for trial.

p. 5

Legal principles established

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  • If a defendant's defence raises even one bona fide triable issue, the defendant must be given leave to defend; summary judgment cannot be entered where a triable issue exists.
  • A triable issue need not be one that will succeed at trial; it is an issue raising a prima facie defence that should go to trial for adjudication.
  • Unconditional leave to defend is not required where the defence raised is a sham.
  • In building contracts, an employer who claims work was overvalued in an interim certificate can resist summary judgment by raising sufficient doubts about the certificate.

Court orders

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  1. 1.Appeal allowed
  2. 2.Decision and decree of the superior court set aside
  3. 3.Suit remitted for trial in the superior court
  4. 4.Appellant awarded costs of the appeal and costs of the application for summary judgment in the superior court
On appeal from
High Court of Kenya at Eldoret
Eldoret HCCC No. 51 of 1999
Jurisdiction invoked
First appeal to the Court of Appeal under the Civil Procedure regime; leave to lodge the appeal out of time granted by Githinji, J.A on 10th November 2004

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, "Moi University v Vishva Bulders Limited", Case Analysis (2010). Civil Appeal No. 296 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/397/eng@2010-02-18

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