Peter Kimani Kairu t/a Kimani Kairu & Company Advocates v Anna Marie Cassiede & another [2019] KECA 481 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a defendant with even one genuine triable issue deserves a full trial, overturning summary judgment against an advocate in a land deposit dispute.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether grounds of appeal re-agitating the procedural validity of the plaint (subject of the withdrawn Civil Appeal No. 176 of 2008) are res judicata
- 2.Whether the High Court (Kimaru, J.) judiciously exercised its discretion in entering summary judgment against the appellant
- 3.Whether the appellant's defence, as amended, raised bona fide triable issues entitling him to unconditional leave to defend
- 4.Whether a written offer and acceptance coupled with payment of consideration constituted a concluded contract of sale of land notwithstanding the unsigned draft agreement
Key legal issues
#Res judicata on the procedural validity of the plaint
Grounds attacking the suit as a procedural nullity, which were the subject of the withdrawn Civil Appeal No. 176 of 2008, could not be re-agitated in this appeal; the withdrawal of that appeal crystallised the trial court's ruling.
The procedural complaint arose from a separate ruling of the trial court and was the subject of a distinct appeal, CA 176/08, which was withdrawn under rule 96(5) and never reinstated. Only the present appeal was reinstated for hearing. Allowing the withdrawn issue to be rehashed in this appeal would abuse court process, so the tranche of grounds on procedural impropriety was declined without discussion.
Whether the trial court properly exercised its discretion in granting summary judgment
The majority held the trial court failed to consider the amended defence and misapplied the summary judgment principles; the defence raised bona fide triable issues, so the discretion was not judiciously exercised and the appeal was allowed.
Applying the United India Insurance principles, the majority found the trial court made contradictory findings (that there was no contract, yet that the appellant breached the agreement's terms), made no reference to the amended defence to which there was no reply, and overlooked the third-party notice and issues on the City Council approvals. Serious contested questions on contract formation and the advocate's authority required oral evidence and cross-examination.
Whether a concluded contract of sale existed such that release of the deposits was lawful
The majority found this a serious triable issue going to the root of liability; the dissent found no contract was ever concluded since the respondents never signed the agreement and release of the funds was contrary to express instructions.
The appellant relied on offer, acceptance and consideration, invoking RTS Flexible Systems and Storer v Manchester City Council. The majority held the intention of the parties and the terms of any contract required investigation at trial. Kiage, JA, dissenting, held Storer distinguishable because there the tenant signed the agreement and one solicitor acted for both sides, whereas here the draft agreement was never signed and much remained unsettled in the correspondence.
Scope of the summary judgment jurisdiction
The majority applied the settled principles that summary judgment is for plain and obvious cases and that one bona fide triable issue suffices for leave to defend; the dissent warned against bastardising the legitimate summary jurisdiction by sending plainly indefensible cases to trial.
Both sides accepted the principles from Giciem, Harit Sheth, ICDC, Dhanjal and Baldev Raj Aggarwal but differed on application. Kiage, JA, dissenting, emphasised that the summary jurisdiction serves salutary ends, that courts may examine documents thoroughly at this stage (Gupta v Continental Builders), and that this was a plain and obvious case of money held on terms that were breached, the defence being a shell.
Legal principles established
#- A Court of Appeal will not interfere with a trial judge's exercise of discretion unless the judge misdirected himself in law, misapprehended the facts, took into account considerations he should not have, failed to take into account considerations he should have, or his decision is plainly wrong.
- Where a defendant shows a fair case for defence or reasonable grounds for setting up a defence, leave to defend must be given unless it is clear there is no real substantial question to be tried.
- To justify summary judgment the matter must be plain and obvious; where it is not, a party must not be deprived of the right to a proper trial with discovery and oral evidence tested by cross-examination.
- A defence raising triable issues need not be a defence that must succeed; where bona fide triable issues are disclosed, the court has no discretion to deny the defendant leave to defend.
- Under the pre-2010 Order XXXV, an application for summary judgment could be made after a defence was filed, but the plaintiff must justify the delay; the amended Order 36 rule 1 of the CPR 2010 confines the application to a defendant who has appeared but not filed a defence, with recourse for unreasonable defences lying under Order VI rule 13.
- Withdrawal of an appeal crystallises the ruling of the trial court on the issue that appeal raised, and re-litigation of that issue in a separate appeal is res judicata and an abuse of court process.
Court orders
#- 1.The ruling and orders of the High Court made on 4th June 2008, and the decree issued in consequence thereof on 7th August 2008, are set aside
- 2.The notice of motion dated 5th July 2007 is rejected
- 3.Unconditional leave is granted to the defendant to defend the suit
- 4.The status quo as existing at the time of the Court of Appeal judgment shall remain until the hearing and determination of the suit in the High Court
- 5.The costs of the appeal and the costs in the court below shall abide the result of the trial
The bench
#Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.
Wrote the judgment
Wrote the lead judgment. Held that the trial court failed to consider the amended defence and that bona fide triable issues existed as to whether a binding contract of sale was concluded and whether the appellant was authorised to release the deposits. Allowed the appeal, set aside the summary judgment and decree, and granted unconditional leave to defend.
As only one bona fide triable issue would suffice to grant the appellant leave to defend the suit, I think the appeal is meritorious.p. 7
Wrote the judgment
Concurred entirely with Waki, JA but added separate observations, noting disputed facts about the advocate's dual role, the significance of the unsigned sale agreement, and the pre-payment of the entire purchase price; held the defence was not a hollow sham and a trial would not prejudice the respondents.
To me the defence put forward by the appellant was not hopeless and a hollow sham, and I say so with a caution that a defence need not be one which must succeed.p. 8
Wrote the judgment
Respectfully dissented. Would have held that the trial judge properly exercised his discretion in granting summary judgment; the defence was a sham raising no triable issue; the Storer authority was distinguishable since the respondents never signed the agreement; and he distinguished Harit Sheth, Dhanjal and Lalji. Would have dismissed the appeal with costs.
I would dismiss this appeal with costs. As the majority are of a contrary view, however, this appeal shall be disposed of in the terms proposed by my learned brother, Waki JA.p. 15
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 39 of 2007
- Jurisdiction invoked
- First appeal from the High Court under the Court of Appeal's appellate jurisdiction (Constitution and Court of Appeal Rules; leave to appeal granted by the High Court on 9 July 2008)
Relief refused
#Immediate refund of the decretal sums together with costs at this stage
The appeal was allowed and the decree set aside; the parties effectively revert to the pre-ruling position with costs deferred to the outcome of the trial
Appellant's contention that the suit was a procedural nullity for having been commenced by plaint rather than originating summons
The issue was settled in the withdrawn Civil Appeal No. 176 of 2008; its withdrawal crystallised the trial court's ruling and re-agitation would be an abuse of process
Costs
The costs of this appeal as well as the costs in the court below shall abide the result of the trial.
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.
I would allow it with the consequence that the ruling and orders made by the High Court on 4th June 2008, as well as the decree issued in consequence thereof on 7th August 2008, shall be and are hereby set aside. I would substitute therefor an order rejecting the notice of motion dated 5th July 2007, and granting unconditional leave to the defendant to defend the suit
The costs of this appeal as well as the costs in the court below shall abide the result of the trial.
I would order that the status quo as exists at the time of this judgment shall remain until the hearing and determination of the suit in the High Court.
As only one bona fide triable issue would suffice to grant the appellant leave to defend the suit, I think the appeal is meritorious.
Where bona fide triable issues have been disclosed, the Court has no discretion to exercise in regard to the defendant’s right to defend the suit.
It is in our view more unjust to shut out a defendant with a good defence than to require a plaintiff to wait a little longer and prove his claim against such a defendant on the merits.
Courts are called upon to see defences maintained for what they are. Some are genuine bona fide and worth exploration but some, alas, are ghostly, chimeric vaporous and insubstantial, existing in pleaded words craftily crafted, but shadowy and flimsy, mere mirages when juxtaposed with when the cold hard facts that emerge from even a cursory look at the documents and correspondence placed before the court.
The purchase of a house in Kileleshwa is not the same as the purchase of a bunch of bananas at Keumbu, a sack of carrots at Karatina or a goat at Mogotio markets. There is more to be thrashed out and agreed in the purchase of real property than just the price.
Issues in the judgment
#Inconsistent citations of Storer v Manchester City Council between the judgments: the majority cites [1974] 1 W.L.R. 1403 while the dissent cites [1974] 3 ALL ER 823 for the same case, and describes the correct ratio differently.
The Koome JA judgment's internal paragraph numbering is irregular and out of sequence (jumps from [5] to [7], then [13], [14], then back to [10]), suggesting a renumbering or transcription error in the official copy.
The judgment's opening describes the appeal as having taken 11 years, yet it was decided on 19th July 2019 against a 2008 ruling, and the judgment itself is dated and delivered in 2019 while portions of the correspondence are misdated (e.g. an email of 12th March 2014 in a 2006-2007 narrative).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Kimani Kairu t/a Kimani Kairu & Company Advocates v Anna Marie Cassiede & another [2019] KECA 481 (KLR)", Case Analysis (2019). Civil Appeal No. 175 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/481/eng@2019-07-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.