Five Forty Aviation Limited v Finejet Limited [2014] KECA 152 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a defence raising even one genuine disputed fact must go to full trial, not be struck out.
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 appellant's defence raised any triable issue such that it should not have been struck out in a summary application
Key legal issues
#Whether the defence raised a triable issue despite the summary striking out
The disputed question whether the agreed fuel prices were to be based on the Platt's tariff with a top-up differential was a bona fide triable issue not determinable from the pleadings alone.
The pricing agreement was oral. Emails from both sides referenced the Platt's tariff, but whether prices were to be Platt's-based with a differential was not obvious or determinable from the pleadings. Resolving it would require oral evidence tested by cross-examination, which summary procedure does not permit. Because a defence raising even one bona fide issue must go to trial, striking out the defence and entering judgment was wrong.
The proper approach to applications for striking out pleadings
The striking out power, though wide, is draconian as it denies a party a plenary hearing, and must be exercised only in the clearest of cases and without minute examination of documents.
The court reviewed the settled law: the striking out power exists under the inherent jurisdiction and Order 2 Rule 15 of the Civil Procedure Rules, its objective being to prevent frivolous and vexatious litigation. Yet because it denies a party the constitutional right to be heard at a plenary trial, it is reserved for plain and incontestable cases, and the court must not usurp the trial judge by conducting a trial in chambers on affidavits.
Legal principles established
#- A defence raising even one bona fide triable issue should not be struck out; the suit should go to full trial.
- The striking out power is draconian and must be exercised with the greatest care and circumspection and only in the clearest cases.
- In summary applications the court must not conduct a minute and protracted examination of documents; that is a trial on affidavits and an abuse of the inherent power.
- An appellate court should not disturb the exercise of discretion by a trial court unless the exercise is perverse or the judge misdirected himself or was clearly wrong.
Court orders
#- 1.Appeal allowed
- 2.Impugned ruling of the High Court set aside
- 3.High Court suit to be heard and determined on merit
- 4.Costs of the appeal to abide the outcome of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya, Milimani Commercial Court
- Nairobi Milimani H.C.C. No. 331 of 2011
- Jurisdiction invoked
- First appeal from the High Court under the Civil Procedure Act and Appellate Jurisdiction Act (provision not expressly stated in the judgment)
Relief refused
#Restoration of judgment entered for the respondent
The defence raised a triable issue warranting full trial
Costs
The costs of this appeal shall abide the outcome of the suit.
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 circumstances, we allow this appeal, set aside the impugned ruling and direct that the High Court suit be heard and determined on merit. The costs of this appeal shall abide the outcome of the suit.
if the defence raises even one bona fide issue, it should not be struck out and instead the suit should go to full trial
the law requires the courts to exercise that power with the greatest care and circumspection and only in the clearest cases
This summary jurisdiction of the court was never intended to be exercised by a minute and protracted examination of documents and the facts of the case
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Five Forty Aviation Limited v Finejet Limited [2014] KECA 152 (KLR)", Case Analysis (2014). Civil Appeal No. 71 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/152/eng@2014-12-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.