Sheila Kinya Maingi T/A Riziki Communications v Matrix Technologies Company Limited [2015] KECA 264 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a defendant who stops payment on cheques must produce real evidence of non-supply, otherwise the creditor wins without a full trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the appellant's defence raised a bona fide triable issue warranting trial
It did not; the appellant admitted issuing the cheques, gave an unsatisfactory excuse for stopping payment, and adduced no evidence to substantiate the alleged failure to supply airtime cards
The court re-evaluated the record as a first appeal. The appellant admitted issuing the six cheques but asserted non-supply of virtual airtime cards without producing transaction records or accounts. Her own letter of 28th May 2005 spoke of problems clearing cheques with no mention of non-delivery. Under sections 108 and 112 of the Evidence Act the burden lay on her, and she failed to discharge it, so no triable issue arose and summary judgment was properly granted.
Allocation of the burden of proof regarding the reason for stopping payment
The burden lay on the appellant as the fact was within her special knowledge under section 112 of the Evidence Act
Applying section 108 (burden on the party who would fail if no evidence were given) and section 112 (facts within special knowledge), the court held the appellant bore the burden of proving non-supply of the airtime cards. She produced no transaction records and did not claim to have paid any part of the sum claimed. Her uncorroborated assertions could not displace the respondent's claim on a liquidated demand supported by dishonoured cheques.
Applicable principles for summary judgment applications
The settled principle is that a defendant showing a bona fide triable issue must be allowed to defend without conditions, but only where the issue is genuinely triable
The court adopted the test in Industrial & Commercial Development Corporation v Daber Enterprises Ltd and the line of authority from Kundanlal Restaurant through Souza Fiqueredo v Moorings Hotel via Dhanjal Investments v Shabana Investments: summary judgment exists to give a quick judgment where there is plainly no defence, and a bona fide triable issue entitles a defendant to unconditional leave to defend. The appellant's defence was held not bona fide, so the principle did not assist her.
Legal principles established
#- Summary judgment procedure is meant to enable a plaintiff to obtain quick judgment only where there is plainly no defence; unless the matter is plain and obvious, a party is not to be deprived of the right to a proper trial
- If a defendant shows a bona fide triable issue, he must be allowed to defend without conditions
- A first appellate court must re-evaluate the matter and arrive at its own independent conclusions
- Where a defendant alleges she stopped payment on account of the plaintiff's failure to supply goods (a fact within her special knowledge), the burden of proving that lies on her under section 112 of the Evidence Act
Court orders
#- 1.Dismissal of the appeal
- 2.Costs of the appeal to the respondent
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No. 339 of 2005
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Constitution and the Civil Procedure Act (first appellate jurisdiction to re-evaluate evidence)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sheila Kinya Maingi T/A Riziki Communications v Matrix Technologies Company Limited [2015] KECA 264 (KLR)", Case Analysis (2015). Civil Appeal No. 200 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/264/eng@2015-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.