Board of Trustees, National Social Security Fund v Japheth Kilonzo Kasanga & 3 others [2017] KECA 335 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a case cannot be thrown out just because a written contract wasn't attached early in the proceedings.
What this practically means
#Executive summary
#Key legal issues
#Whether a plaint may be struck out for want of a written contract under section 3(3) of the Law of Contract Act where no contract document has been exhibited at the interlocutory stage
No; absence of the contract document at the striking-out stage is not fatal, as the plaintiff is not yet required to produce it and the existence of the contract is a matter for evidence at trial.
The court held that the question was whether the physical document complying with the Law of Contract Act existed, and that at the striking-out stage discovery had not been undertaken nor a request made and refused. The Judge could not decide the issue one way or the other at that stage, so deferring it to trial was a proper exercise of discretion. Striking out without discovery would be harsh and unconscionable.
The standard for appellate interference with a trial judge's discretionary decision
An appellate court interferes with a discretionary decision only where the judge misdirected himself, took into account irrelevant matters or failed to consider relevant ones, or was plainly wrong.
Restating Mbogo v Shah, the court emphasised that it is very slow to disturb a discretionary decision, doing so in rare cases where the judge failed to consider a relevant matter, considered an irrelevant one, or where the decision as a whole was plainly wrong. Nothing perverse was found in the Judge's approach, so the discretion stood.
The nature of the striking-out jurisdiction and the right of access to justice
Striking out a pleading excludes a party from the seat of justice and is the antithesis of the right of access to justice; it must be reserved for plainly and obviously dead pleadings, as the exception rather than the rule.
The court held that cases are ordinarily decided on evidence tested at trial, not on affidavit, and that summary conclusion of cases should be resorted to sparingly and only in obvious and deserving cases. A pleading may be struck out only where it is hopelessly bad, beyond salvation by amendment, so dead that it is beyond resuscitation by any known means.
Legal principles established
#- An appellate court will not interfere with a trial judge's exercise of discretion unless it is shown the judge misdirected himself, took into account irrelevant matters or failed to consider relevant ones, or was plainly wrong.
- Striking out a pleading is a draconian jurisdiction to be exercised sparingly; it may only be granted where the pleading is hopeless and beyond salvation by amendment.
- Failure to exhibit a written contract complying with section 3(3) of the Law of Contract Act at an interlocutory stage, before discovery, does not ipso facto establish that no enforceable contract exists.
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal awarded to the 1st respondent
- On appeal from
- High Court of Kenya at Nairobi
- E.L.C. Civil Suit No. 160 of 2009 (ruling dated 28th January, 2011)
- Jurisdiction invoked
- First appellate/interlocutory appeal to the Court of Appeal (the judgment does not expressly cite the constitutional or statutory provision invoking jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Board of Trustees, National Social Security Fund v Japheth Kilonzo Kasanga & 3 others [2017] KECA 335 (KLR)", Case Analysis (2017). Civil Appeal No. 53 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/335/eng@2017-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.