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ELCDismissedNot stated in judgment· [2017] KEELC 2615 (KLR)

Wideview Properties Limited v Invesco Assurance Company Limited [2017] KEELC 2615 (KLR)

High Court of Kenya
29 June 2017
KBK. BOR
404 words in judgment
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The bottom line

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Kenya's High Court confirmed you cannot get summary judgment once the defendant has already filed a defence — the case must go to full trial.

What this practically means

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Executive summary

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The plaintiff, Joseph Gitau Mburu, applied by notice of motion dated 16th February 2016 under Order 36 Rule 1(1)(b) of the Civil Procedure Rules for summary judgment for recovery of Flats D1 and B44 on L.R. 209/4517, known as Fine Diamond Apartments, as prayed in the plaint, together with an ancillary order that the Officer Commanding Kilimani Police Station accompany him and provide security in taking possession. The application was grounded on the assertion that the plaintiff was the registered proprietor, having purchased the property from the defendant who failed to hand over possession, and that the defendant had not filed a defence. The court noted, however, that a defence was in fact filed on 8th February 2016. The defendant opposed the application on the basis that it had filed a defence. Relying on decisions including those of Munyao Sila J and Fred Ochieng J, the court held that summary judgment under Order 36 Rule 1(1)(b) is available only against a defendant who has entered appearance but failed to file a defence. The plaintiff's contrary authority, Joseph Odhiambo Moro v Dirk Jozef Marie-Rose Van Bunder, was distinguished as decided under the pre-2010 Civil Procedure Rules. The application was dismissed with costs to the defendant on 29th June 2017, with no appearance recorded for either party.

Key legal issues

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01

Availability of summary judgment where a defence has been filed

Holding

Summary judgment under Order 36 Rule 1(1)(b) cannot be granted where the defendant has filed a defence

Reasoning

The court held that Order 36 Rule 1(1)(b) confines summary judgment to defendants who enter appearance but fail to file a defence. Since a defence was filed on 8th February 2016, the procedure was unavailable regardless of the merits of the defence. Authorities relied on by the defendant to this effect were affirmed, and the plaintiff's contrary authority was distinguished as decided under the old Civil Procedure Rules before the 2010 Rules came into force.

p. 2

Legal principles established

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  • Summary judgment under Order 36 Rule 1(1)(b) lies only against a defendant who has entered appearance but has not filed a defence

Court orders

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  1. 1.The application dated 16th February 2016 is dismissed with costs to the Defendant

Authorities

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Legislation

  • Civil Procedure RulesOrder 36 Rule 1(1)(b)

Cases cited (4)

  • James Kipkoech v Hillary Kipkosgei Kiboinet t/a Sweetland Limited
    [2014] eKLR
  • Elizabeth Torongei & 5 Others v David Kipngetich Soi
    [2015] eKLR
  • Stargent Enterprises Limited v Cannon Assurance Limited
    [2017] eKLR
  • Joseph Odhiambo Moro v Dirk Jozef Marie-Rose Van Bunder
    [2011] eKLR
Jurisdiction invoked
Order 36 Rule 1(1)(b) of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Wideview Properties Limited v Invesco Assurance Company Limited [2017] KEELC 2615 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2615/eng@2017-06-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.