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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal No. 71 of 2012

Five Forty Aviation Limited v Finejet Limited [2014] KECA 152 (KLR)

Court of Appeal
18 December 2014
1,886 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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Finejet Limited sued Five Forty Aviation Limited for US$656,304.49 as the price of jet fuel uplifts delivered in Kenya, Uganda and South Sudan, alleging that cheques worth US$90,000 issued in part payment were dishonoured. Five Forty admitted receiving the fuel but denied the debt, asserting an oral agreement that prices were to be based on the international Platt's tariff plus a differential of 19 cents a gallon, and that its account was in credit. The High Court (Havelock, J.) struck out the defence as frivolous and vexatious under Order 2 Rule 15 and entered judgment for Finejet, prompting this appeal. The Court of Appeal framed a single issue: whether the defence raised any triable issue. Reaffirming settled principles, the Court held that the striking out power is draconian since it denies a party a plenary hearing, must be exercised with the greatest care only in the clearest cases, and must not involve a minute examination of documents. It found that whether the agreed prices were Platt's-based with a differential was a bona fide triable issue, not obvious from the pleadings and requiring oral evidence tested by cross-examination. It further applied the principle that an appellate court will not disturb a trial court's exercise of discretion absent perversity or clear error, but found the judge here fell into that error. The Court allowed the appeal, set aside the ruling, directed the suit to full hearing, and ordered that costs of the appeal abide the outcome of the suit.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 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

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01

Whether the defence raised a triable issue despite the summary striking out

Holding

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.

Reasoning

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.

p. 3
02

The proper approach to applications for striking out pleadings

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Appeal allowed
  2. 2.Impugned ruling of the High Court set aside
  3. 3.High Court suit to be heard and determined on merit
  4. 4.Costs of the appeal to abide the outcome of the suit

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
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

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Restoration of judgment entered for the respondent

The defence raised a triable issue warranting full trial

p. 3

Costs

The costs of this appeal shall abide the outcome of the suit.

Quotable passages

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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.
p. 3Final orders
if the defence raises even one bona fide issue, it should not be struck out and instead the suit should go to full trial
p. 3Striking out defences - triable issue test
the law requires the courts to exercise that power with the greatest care and circumspection and only in the clearest cases
p. 3Restraint in exercising the striking out jurisdiction
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
p. 3Limits of summary jurisdiction

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.