Benson W. K. Mungai v Co-operative Merchant Bank of Kenya Limited [2017] KECA 693 (KLR)
The bottom line
#The Court of Appeal reinstated a borrower's defence struck out by the High Court, confirming that Kenyan courts can only strike out defences that raise no triable issues whatsoever.
What this practically means
#Executive summary
#Key legal issues
#Test for striking out a defence
A defence should not be struck out unless it is unarguable and raises no triable issues whatsoever; the striking-out jurisdiction must be exercised cautiously.
The Court, citing D. T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & Another and Nagle v Fielden, reiterated that no party should be driven from the seat of justice without a hearing unless the case is so hopeless it cannot be resuscitated even by amendment. Striking out is justified only where the defence is frivolous, an abuse of process, and raises no triable issues, making a full hearing an exercise in futility.
Whether the appellant's defence raised triable issues
Yes - the absence of evidence of notice of arrears, unexplained and varied figures of the outstanding loan, and accounts not availed until after suit raised issues deserving a full hearing.
The Court observed that even the learned Judge had acknowledged there was no evidence the appellant was ever informed of the arrears before or after the sale of his property. The figures of the outstanding loan varied without explanation, and statements of account were only availed after the appellant requested them through counsel once suit was filed, denying him the opportunity to challenge them. These issues warranted the Judge's ear.
Duty of a first appellate court
The Court of Appeal on a first appeal must re-evaluate the evidence and form its own conclusions, subject to the disadvantage of not having seen or heard the witnesses.
Relying on Rule 29(1)(a) of the Court of Appeal Rules and its prior decision in Kenya Ports Authority v Kuston (Kenya) Ltd, the Court framed its task as reconsidering the entire record, evaluating the evidence itself, and drawing its own conclusions as to whether the learned Judge was right in striking out the defence, while making due allowance for the absence of first-hand observation of witnesses.
Legal principles established
#- A statement of claim (or defence) should not be struck out and a party driven from the judgment seat unless the case is unarguable; a court must be satisfied there are no triable issues whatsoever before striking out a defence summarily.
- On a first appeal, the Court of Appeal must reconsider the evidence, evaluate it itself and draw its own conclusions, while making due allowance for not having seen or heard the witnesses.
Court orders
#- 1.Appeal allowed
- 2.Ruling dated 19th May 2005 allowing the application dated 16th February 2004 set aside and substituted with an order dismissing that application
- 3.Milimani Commercial Court Civil Suit No. 781 of 2001 to proceed to full hearing before any Judge with jurisdiction
- 4.Costs of the appeal and of the court below awarded to the appellant
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 781 of 2001
- Jurisdiction invoked
- First appellate jurisdiction over the High Court under the Court of Appeal's appellate powers (Rule 29(1)(a) of the Court of Appeal Rules invoked as to re-evaluation of evidence)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benson W. K. Mungai v Co-operative Merchant Bank of Kenya Limited [2017] KECA 693 (KLR)", Case Analysis (2017). Civil Appeal No. 257 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/693/eng@2017-03-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.