Kenya Commercial Bank Limited v Nicholas R. O. Ombija [2015] KECA 310 (KLR)
The bottom line
#Kenya's Court of Appeal ruled a court cannot kick out a defence unless it clearly has no merit, even if the other side wrote an apologetic letter.
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 High Court erred in striking out the appellant's defence under the striking-out provisions of the Civil Procedure Rules
- 2.Whether the High Court could enter judgment on admission when no application for judgment on admission under the former Order XII rule 6 CPR had been made
- 3.Whether the letter dated 20th May 2008 constituted a clear, unequivocal and unconditional admission of the claim
- 4.Whether the defence raised triable issues on the claims for breach of contract and defamation
Key legal issues
#Distinction between striking out a pleading and entering judgment on admission
The application before the High Court was an application to strike out the defence, not an application for judgment on admission; the judge could not enter judgment on admission when no such application under the former Order XII rule 6 had been made.
The application was expressly brought under Order VI rule 13(1)(b), (c) and (d) CPR and was prosecuted as a striking-out application, with the affidavit and submissions addressing the defence's alleged scandalous, frivolous and vexatious character. The power to strike out pleadings and the power to enter judgment on admission under Order 13 rule 2 have different objects: the former polices pleadings, the latter enables speedy judgment on clear admissions. A court cannot exercise the latter power in the absence of an application invoking it.
Whether the defence raised triable issues
The defence raised genuine triable issues on both the contract and defamation claims, including whether the respondent exceeded the credit limit, whether the bank had a discretion to suspend the card, and whether the printed words were defamatory.
The claim rested on construction of the credit card contract. The appellant pleaded specific terms, including clause 26 permitting suspension or cancellation of the card, and alleged the respondent exceeded the credit limit and remained indebted. On the defamation claim, the appellant denied publication and relied on contract, custom and usage permitting printing of the impugned words. These disputes required resolution at trial; the defence conformed to the rules of pleadings and disclosed no abuse of process.
Whether the letter of 20th May 2008 was an unequivocal admission
The letter was not an unequivocal admission of the claim; it showed the respondent had exceeded the credit limit and had a debit balance, and its apologetic language required construction against the contract by the trial court.
The letter stated the account was temporarily suspended because the authorized credit limit was exceeded, and showed a balance owing after the payment of Kshs.19,500, facts the respondent never denied. The demand letter sought only an apology, not admission of liability. The bank's Risk Manager explained the letter was a customer-relations apology. The judge's cryptic ruling did not analyse the letter against the replying affidavit, defence and contract, nor say whether the admission covered both the contract and defamation claims.
Legal principles established
#- The power to strike out a pleading must be exercised sparingly and with circumspection, and a pleading will not be struck out if it discloses an arguable case or raises a triable issue.
- A judgment on admission is discretionary and requires a clear, unambiguous, unconditional and unequivocal admission of the claim.
- The powers to strike out a pleading and to enter judgment on admission are governed by provisions with different objects and cannot be conflated.
- An alleged admission in correspondence must be construed together with the terms of the contract to determine whether it is clear and unequivocal, which is a function of the trial court.
- A scandalous allegation in a pleading cannot be struck out if it is relevant to the facts in issue.
Court orders
#- 1.Appeal allowed
- 2.Order striking out the defence set aside
- 3.Defence restored on the record with the result that the suit shall be heard on the merits
- 4.Appellant awarded the costs of the appeal and of the court below
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. 547 of 2008
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the High Court (appeal as of right against an interlocutory ruling of the High Court)
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.
We allow the appeal, set aside the order striking out the defence, and restore the defence on the record with the result that the suit shall be heard on the merits. The appellant is entitled to the costs of the appeal and of the court below. Orders accordingly.
A judgment on admission is in the discretion of the court and is given, if it is plain that there is a clear express or implied admission. Such admission must be clear, unambiguous, unconditional and unequivocal.
In exercising its discretion whether to strike out a pleading or order amendment, the court considers only the averments in the pleadings and any admissible evidence.
Moreover, the court would not strike out a pleading if it discloses an arguable case or raises a triable issue.
The ruling appealed from is cryptic. It does not analyse the contents of the letter in relation to the contents of the replying affidavit, the defence and the contract.
Issues in the judgment
#The coram heading and the body of the judgment describe the High Court decision differently - the heading refers to the 'Judgment and Decree ... (Khamwa, J.) dated 27th July, 2009' while the body refers to 'the Ruling of the High Court (Joyce Khaminwa, J.) dated 5th March, 2009'.
The judgment gives inconsistent references for the renaming of the striking-out provision, once as 'Order 2 Rule 15(1)' and later as 'Order 11 rule 15 Civil Procedure Rules 2010'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Commercial Bank Limited v Nicholas R. O. Ombija [2015] KECA 310 (KLR)", Case Analysis (2015). Civil Appeal No. 231 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/310/eng@2015-10-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.