Kubondo v Cannon Assurance Company Limited (Civil Appeal 33 of 2019) [2024] KECA 1323 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a defence raising even one genuine dispute deserves a full trial, not striking out.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the first appellate Court erred in finding that the Respondent's defence raised triable issues
- 2.Whether the first appellate Court erred in its holding on the burden of proof
Key legal issues
#Whether the defence raised triable issues entitling the Respondent to leave to defend
Yes. The Respondent denied being the insurer and denied service of statutory notice; these contestations could only be resolved in a full trial. The first appellate Court did not err.
The Court found a live contest between the parties as to whether the Respondent issued the insurance policy and whether the statutory notice was sent and received. The Statement of Defence denied both facts and sought leave to supply witness statements and documents. Such contestations can only be determined upon adjudication in a full trial, so the first appellate Court correctly found triable issues.
Whether the first appellate Court erred on the burden of proof
The issue was premature. Once the striking-out question was resolved, remaining issues were matters of merit for trial.
The Court held the only question before the trial Court and first appellate Court was when a defence may be struck out, on which the law is settled. Once resolved, all other issues, including statutory defences and evidential sufficiency, fall for determination at trial or judgment. The burden of proof question therefore did not arise for determination at this interlocutory stage.
The legal standard for striking out a defence
The power must be exercised sparingly and only where the pleading is clearly untenable; a single triable issue entitles a defendant to leave to defend.
Relying on its own precedents (Postal Corporation of Kenya v IT Inamdar, Blue Shield Insurance v Joseph Mboya Ogutu, Moi University v Vishva Builders), the Court reaffirmed that striking out a pleading drives a party from the judgment seat and must be reserved for clearly untenable pleadings. Even one triable issue suffices for a full hearing.
Legal principles established
#- The power to strike out a pleading which ends in driving a party from the judgment seat should be used very sparingly and only where the pleading is clearly untenable; one triable issue suffices for leave to defend
- Averments in pleadings are not evidence until proved or admitted; no decision may be founded on them
- The burden on a plaintiff to prove his case remains the same throughout the case and is not lessened by the defendant's failure to call evidence; the plaintiff must adduce some credible and believable evidence
- The duty of a second appellate Court is limited to matters of law, unless the two courts below considered matters they should not have, failed to consider matters they should have, or the decision is perverse
Court orders
#- 1.The appeal is dismissed
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Nairobi Civil Appeal Case No. 517 of 2015
- Jurisdiction invoked
- Second appeal to the Court of Appeal on matters of law
Relief refused
#Setting aside the High Court judgment and reinstating the trial Court's decision striking out the defence and entering judgment
The defence raised triable issues that could only be determined in a full trial, and the burden of proof issue was premature
Costs
No order as to costs, since the Respondent was not in attendance during the hearing
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.
We accordingly find no merit in the appeal, which is hereby dismissed with no order as to costs, since the Respondent was not in attendance during the hearing.
the power to strike out a pleading which ends in driving a party from the judgment seat should be used very sparingly and only in cases where the pleading is shown to be clearly untenable
The pleadings in a suit are not normally evidence. They may become evidence if they are expressly or impliedly admitted as then the admission itself is evidence.
before the trial court can conclude that the plaintiff's case is not controverted or is proved on a balance of probabilities by reason of the defendant's failure to call evidence, the court must be satisfied that the plaintiff has adduced some credible and believable evidence
The contestations could only be determined upon adjudication in a full trial, and the first appellate Court therefore did not err in its finding that the defence raised triable issues, and took into account the relevant considerations into account.
Issues in the judgment
#Judgment contains inconsistent vehicle registration numbers - the plaint refers to KBL 069X while the defence and submissions refer to KBA 682E / KBA, 682E
Judgment contains inconsistent dates regarding the statutory notice - paragraph 3 states the notice of judgment letter was dated 12th April 2013, while paragraph 15 refers to a notice dated 1st November 2020 served by a letter dated 12th November 2020
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kubondo v Cannon Assurance Company Limited (Civil Appeal 33 of 2019) [2024] KECA 1323 (KLR)", Case Analysis (2024). Second Appeal from Nairobi Civil Appeal Case No. 517 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1323/eng@2024-09-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.