Romano Massacesi & another v Gaetano Grasso aka Ennio Grasso [2015] KEELC 467 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a creditor's fast-track debt application because it was filed too late, was poorly drafted, and lacked supporting documents.
What this practically means
#Executive summary
#Key legal issues
#Competency of the application as drafted
The application is defective because it seeks summary judgment for Kshs.13,200,000 and judgment on admission for Euro 86,000, which are inconsistent reliefs that can only be sought in the alternative as pleaded.
The court found that the Plaint and the Application sought orders that can only be granted in the alternative. The Plaintiffs claimed a loan of Euro 120,000 yet sought both summary judgment for Kshs.13,200,000 and judgment on admission for Euro 86,000, amounts that cannot coexist in a single grant. On that ground alone the application was held defective and liable to dismissal.
Availability of summary judgment after filing of defence
Summary judgment under Order 36 Rule 1(1) is unavailable once a defence has been filed; the remedy thereafter is striking out the defence under Order 2 Rule 15.
The Defendant filed his Defence on 11th December 2013 and the Plaintiffs replied and joined issues. The application was filed about a year after the defence with no explanation for the delay. The court held that Order 36 Rule 1(1) applies only between appearance and filing of defence, and after a defence is filed the proper remedy is Order 2 Rule 15.
Judgment on admission
No judgment on admission can be entered because the admitted sum of Euro 86,000 was admitted on a without prejudice basis and is therefore not unequivocal.
Although paragraph 8(iv) of the Defence admitted owing Euro 86,000, the admission was expressly on a without prejudice basis and was coupled with a denial of the Plaintiffs' right to recover, based on the agreement having been drawn by an advocate without a valid practising certificate. The court held judgment on admission requires an unequivocal admission of facts not traversed.
Evidential burden on the applicants
It is for the applicants to annex to their supporting affidavit the documents they rely on; the court will not comb through bundles to ascertain the claim.
The Plaintiffs failed to annex to their supporting affidavit the loan agreement or copies of the dishonoured cheques. The court held that it is not the court's function at that stage to sift through the Plaintiffs' bundles of documents or statements; the applicants must themselves attach the relevant documents supporting the application.
Legal principles established
#- An application for summary judgment under Order 36 Rule 1(1) can only be made after the defendant has entered appearance but before a defence is filed; once a defence is filed, the remedy is striking out under Order 2 Rule 15.
- Judgment on admission can only be entered at an interlocutory stage where the admission is unequivocal and untraversed.
Court orders
#- 1.Application dated 12th January 2015 dismissed with costs
- Jurisdiction invoked
- Civil Procedure Rules, Order 36 (summary judgment and judgment on admission)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Romano Massacesi & another v Gaetano Grasso aka Ennio Grasso [2015] KEELC 467 (KLR)", Case Analysis (2015). Not stated in judgment (Application dated 12th January 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/467/eng@2015-05-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.