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Court of AppealDismissedCivil Appeal No 94 of 2006· [2015] KECA 846 (KLR)

Job Kilach v Nation Media Group Ltd, Salaba Agencies Ltd & Michael Rono [2015] KECA 846 (KLR)

Court of Appeal of Kenya
20 March 2015
EGE. M. GithinjiWKW. KaranjaPhilomena Mbete MwiluP. M. Mwilu
2,694 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that bare denials are not a defence—if you sign a written promise to pay, you must give real reasons, not just say it isn't so.

What this practically means

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Executive summary

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Nation Media Group Ltd sued Salaba Agencies Ltd, Job Kilach and Michael Rono for Kshs 11,704,306 allegedly owed for products supplied on credit. The appellant denied being a director of Salaba Agencies and pleaded that his letter of undertaking of 29th November 2001 was conditional on the sale of a parcel of land owned by Agro Metro Development Ltd and on the grant of a fresh newspaper distribution agreement, consideration which he said failed. Mutungi, J granted the 1st respondent summary judgment for the outstanding sum, interest and costs, holding the defence raised no triable issue. The Court of Appeal, Githinji, Karanja and Mwilu JJ.A, in a single judgment of the court, restated the settled principles governing summary judgment: it is a draconian remedy grantable only in the clearest of cases; one bona fide triable issue entitles a defendant to leave to defend; a triable issue need not succeed, it need only be bona fide; and the burden lies on the defendant to show prima facie triable issues. The court found the appellant had admitted the debt and the undertaking in writing, and that his defence amounted to bare denials which are no defence at all. The first appellate court's duty to re-evaluate the evidence was also affirmed. The appeal was dismissed with costs to the respondents, thereby affirming the High Court's ruling.

Key legal issues

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01

Scope of summary judgment procedure

Holding

Summary judgment is a draconian measure grantable only in the clearest of cases where the defence raises no triable issue

Reasoning

The court traced the settled principles from its own precedents: summary judgment eliminates delay but is draconian; a trial must be ordered if any triable or fairly arguable issue exists. The procedure applies where the claim is for a liquidated sum and the defence is a sham or raises no triable issues.

p. 3
02

Meaning of a bona fide triable issue

Holding

A triable issue is any matter raised by the defendant that would require further interrogation by the court at a full trial; it need not be one that would succeed

Reasoning

Drawing on Black's Law Dictionary and its own case law, the court held that a bona fide triable issue is one warranting further examination at trial, not one destined to succeed. Where there is a dispute of fact resolvable only at a full hearing, leave to defend must be given.

p. 4
03

Effect of the appellant's letter of undertaking and defence

Holding

The appellant's defence amounted to mere denials of an admitted undertaking and raised no triable issue; summary judgment was properly entered

Reasoning

The appellant and the 3rd respondent had, in a written agreement dated 29th November 2001, admitted being directors and shareholders of the indebted company and undertook to pay Kshs 5,000,000 upon sale of a property and to sign guarantees. The defence's bare denial of directorship and claim of malice did not displace the written undertaking; the debt was admittedly due.

p. 5
04

Duty of a first appellate court

Holding

A first appeal court must re-evaluate the evidence tendered before the trial court and draw its own independent conclusions

Reasoning

Citing Selle v Associated Motor Boat Company, the court affirmed its obligation as a first appellate court to reconsider and evaluate the evidence itself and reach its own conclusions, while making due allowance for the fact that it neither saw nor heard the witnesses.

p. 3

Legal principles established

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  • Summary judgment is a draconian remedy granted only in the clearest of cases; if even one bona fide triable issue is raised, the defendant must be given leave to defend
  • A bona fide triable issue need not be one that would succeed; it need only warrant further interrogation at a full trial
  • The onus on an application for summary judgment is cast on the defendant to show prima facie the existence of triable issues
  • Mere denial of liability is not a sufficient defence; the defendant must give some reason why the money is not owed

Court orders

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  1. 1.Appeal dismissed with costs to the respondents

Authorities

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Legislation

  • Civil Procedure Rules (former Order XXXV, now Order 36)rule 1

Cases cited (9)

  • Selle v Associated Motor Boat Company
    [1968] E.A. 123
  • Lalji t/a Vakkep Building Contractors v. Casousel Ltd.
    [1989] KLR 386
  • Continental Butchery Limited v Nthiwa
    [1978] KLR (Civil Appeal No. 35 of 1977)
  • Postal Corporation of Kenya vs. Inamdar & 2 Others
    [2004] 1 KLR 359
  • Gupta v Continental Builders Ltd
    [1976-80] 1 KLR 809
  • Giciem Construction Company v. Amalgamated Trade & Services
    LLR No 103 (CAK)
  • Olympic Escort International Co. Ltd. & 2 Others v. Parminder Singh Sandhu & Another
    [2009] eKLR (Civil Appeal 306 of 2002)
  • Nairobi Golf Hotels (K) Ltd v Bhimji Sanghani Builders Contractors
    [1997] eKLR (Civil Appeal Number 5 of 1997)
  • Mugunga General Stores V Pepco Distributors Ltd
    [1986] LLR 5111 (CAK)
On appeal from
High Court of Kenya at Nairobi
H.C.C.C No 80 of 2003
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (the judgment does not expressly cite the enabling provision)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "Job Kilach v Nation Media Group Ltd, Salaba Agencies Ltd & Michael Rono [2015] KECA 846 (KLR)", Case Analysis (2015). Civil Appeal No 94 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/846/eng@2015-03-20

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