Dewdrop Enterprises Limited v City Council of Nairobi & another [2017] KECA 214 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that disputes about owed money should go to trial, and a city council's in-house lawyer could validly sign its defence.
What this practically means
#Executive summary
#Key legal issues
#Whether the 2nd respondent admitted owing Kshs. 158,265.30
No admission; the defence expressly denied and put the claim to strict proof, so summary judgment was properly refused.
Under Order 2 rule 11, allegations of fact are admitted only if not traversed. The 2nd respondent's defence expressly denied withholding the VAT, retention and withholding tax sums, attributing them to the 1st respondent. The appellant relied selectively on the replying affidavit while ignoring the defence. Read as a whole, the pleadings disclosed a dispute requiring trial evidence.
Whether the defences disclosed no triable issues and should be struck out
Triable issues existed, notably the relationship between the parties and responsibility for the disputed sums; striking out was properly declined.
Applying D.T. Dobie & Company (Kenya) Ltd v Muchina, the power to strike out is discretionary and must be exercised cautiously. The respondents' pleadings raised genuine disputes as to entitlement to the sums and whether the 1st or 2nd respondent was liable for VAT and withholding tax. These require viva voce and documentary evidence; vicarious liability cannot be determined until the relationship is ascertained.
Whether the 1st respondent's advocate was an unqualified person
He was not; as a holder of office in a local authority he was entitled to act under section 10 of the Advocates Act, so sections 31 and 33 were inapplicable.
Section 10 entitles persons holding office in a local authority, if holding qualifications in section 13(1), to act as advocates for their office and not be deemed unqualified. Mr. Odhiambo was Legal Counsel and Assistant Director, Legal Affairs at the City Council, admitted to the roll in 2001. The case is distinguishable from R.N. Mucira, where a private practitioner without a practising certificate was suspended. National Bank of Kenya v Anaj Warehousing confirms documents by non-advocates or struck-off advocates are void, neither category applying here.
Whether the 2nd respondent filed its defence in the wrong court / without leave
Not determined; the issue was not pleaded or canvassed below.
The court declined to entertain a ground raised for the first time on appeal where it was not before the High Court, reaffirming that parties are bound by their pleadings.
Legal principles established
#- An admission must be determined from an analysis of the entire pleadings, not isolated portions, and a traverse by denial or non-admission in the pleading itself defeats a claim of admission.
- The power to strike out a pleading is discretionary and must be exercised with the greatest care and caution; a suit with a mere semblance of a cause of action should go to trial.
- An advocate holding office in a local authority is entitled to act as advocate in connection with the duties of that office under section 10 of the Advocates Act and is not an unqualified person for that purpose, even absent a current practising certificate.
- An appellate court will not determine an issue that was not pleaded, canvassed or determined by the trial court.
Court orders
#- 1.Appeal dismissed with costs to the 1st and 2nd respondents
- On appeal from
- High Court of Kenya at Milimani
- Civil Cause No. 892 of 2009
- Jurisdiction invoked
- First appellate jurisdiction over the High Court under the Civil Procedure Act and Appellate Jurisdiction Act (not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Muthoka & another v Makau & 3 others (Environment and Land Appeal E028 of 2022) [2024] KEELC 5282 (KLR)[2024] KEELC 5282 (KLR)10 Jul 2024
Cite this brief
#Cite this brief
Caselaw, "Dewdrop Enterprises Limited v City Council of Nairobi & another [2017] KECA 214 (KLR)", Case Analysis (2017). Civil Appeal No. 71 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/214/eng@2017-10-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.