Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in judgment (Application dated 12th January 2015)· [2015] KEELC 467 (KLR)

Romano Massacesi & another v Gaetano Grasso aka Ennio Grasso [2015] KEELC 467 (KLR)

Environment and Land Court (Malindi)
5 June 2015
1,157 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

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

#
The Plaintiffs applied by Notice of Motion dated 12th January 2015 for summary judgment in terms of prayer 2 of the Plaint and, alternatively or additionally, judgment on admission for Euro 86,000, with costs. Their suit, filed on 7th November 2013, alleged that on 23rd October 2012 they loaned the Defendant Euro 120,000 (Euro 80,000 by the 1st Plaintiff and Euro 40,000 by the 2nd), repayable within six months, secured by a lien over villas 14 and 17 on plot number 2727; post-dated cheques issued by the Defendant were dishonoured. In the Plaint they sought Kshs.13,200,000 or a permanent injunction restraining transfer of the villas. The Defendant opposed, raising triable issues including the enforceability of the agreement, the exchange rate, alleged fraud, and the fact that the agreement was drawn by an advocate without a valid practising certificate. Justice O. A. Angote dismissed the application. First, it was defective as drafted, seeking inconsistent monetary reliefs that could only be granted in the alternative. Second, summary judgment under Order 36 Rule 1(1) lies only after appearance but before a defence is filed; once a defence is filed, the remedy is striking out under Order 2 Rule 15, and the application here came a year after the defence without explanation. Third, the admitted Euro 86,000 was admitted on a without prejudice basis and was not unequivocal. Fourth, the Plaintiffs failed to annex the agreement and cheques to their supporting affidavit. The application was dismissed with costs.

Key legal issues

#
01

Competency of the application as drafted

Holding

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.

Reasoning

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.

p. 2
02

Availability of summary judgment after filing of defence

Holding

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.

Reasoning

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.

p. 2
03

Judgment on admission

Holding

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.

Reasoning

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.

p. 3
04

Evidential burden on the applicants

Holding

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.

Reasoning

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.

p. 3

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. 1.Application dated 12th January 2015 dismissed with costs

Authorities

#

Legislation

  • Civil Procedure RulesOrder 36 Rule 1(1)
  • Civil Procedure RulesOrder 2 Rule 15
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.