Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedNot stated in the judgment (Notice of Motion dated 25th October 2016)· [2017] KEELC 3178 (KLR)

Rockster Investment Limited & 4 others v Bofa Investment Limited [2017] KEELC 3178 (KLR)

Environment and Land Court of Kenya
21 April 2017
JOJ. O. Olola
3,360 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

#

A Kenyan court struck out a property developer's defence and ordered it to refund Kshs 15 million in apartment deposits, ruling a bare denial is no defence.

What this practically means

#

Executive summary

#
This is a first-instance ruling of the Environment and Land Court at Malindi on a Notice of Motion dated 25th October 2016 by five Plaintiffs seeking entry of judgment against the Defendant for Kshs 15,000,000, a liquidated claim for deposits paid for five apartments at Kilifi Sea View Apartments on L.R. No. 5054/183. Each Plaintiff paid Kshs 3,000,000 in deposits under letters of offer dated around 22nd October 2010. The Defendant's advocates acknowledged receipt of the deposits by letter of 12th March 2012. The Defendant opposed, arguing the application cited non-existent provisions, lacked a prayer to strike out the defence, and that the Plaintiffs were themselves in breach and thus not entitled to a refund. The court framed two issues: competence of the application and entitlement to the orders sought. On competence, the court held that citing the wrong provisions does not doom a meritorious application, applying Article 159(2)(d) and the overriding objective of the Civil Procedure Act. On merits, the court found the defence was a mere general denial raising no triable issues: the Defendant conceded receipt of the deposits and the delay in construction, and the contract's cancellation clause allowed forfeiture of only 10% of the purchase price, showing deposits were not wholly forfeitable. Applying the summary judgment principles in Job Kilach and Magunga General Stores, the court struck out the defence and counterclaim, entered judgment for the Plaintiffs as prayed in the plaint, and awarded the Plaintiffs the costs of the suit and the application.

Key legal issues

#
01

Whether citing non-existent provisions (Order 1A and 3A of the Civil Procedure Act) renders the application incompetent

Holding

The objection was rejected; the court overlooked the technicality in favour of substantive justice

Reasoning

The overriding objective under sections 1A and 1B of the Civil Procedure Act and Article 159(2)(d) of the Constitution requires courts to administer justice without undue regard to procedural technicalities. Authorities establishing that wrong invocation of provisions does not doom a meritorious application were followed. The Defendant's argument that non-existent provisions invalidate the application was therefore rejected.

p. 3
02

Whether the Defendant's defence and counterclaim raised triable issues regarding the liquidated claim of Kshs 15,000,000

Holding

The defence was a mere general denial raising no triable issue; it was struck out and judgment entered for the Plaintiffs

Reasoning

The Defendant conceded receipt of Kshs 15,000,000 as deposit but refused to refund it, alleging the Plaintiffs were in breach and citing frustration by third parties. However, the letter of offer's cancellation clause only allowed forfeiture of 10% of the purchase price, showing deposits were not absolutely forfeitable. The Defendant's own letter conceded delay in construction. The defence was a general denial without reasons and raised no triable issue.

p. 6

Legal principles established

#
  • Invoking the wrong provision of law does not necessarily doom a meritorious application where done in good faith and without prejudice to the other side
  • Before granting summary judgment, the court must be satisfied there are no triable issues raised by the defendant
  • A mere general denial is not a sufficient defence; reasons must be given

Court orders

#
  1. 1.The defence and counterclaim filed herein are hereby struck out
  2. 2.Judgement is hereby entered for the Plaintiffs against the Defendant as prayed in the Plaint
  3. 3.The Defendant will pay the costs of the suit as well as the costs of this application to the Plaintiffs

Authorities

#

Legislation

  • Civil Procedure Act, Cap 21Sections 1A and 1B
  • Constitution of Kenya 2010Article 159(2)(c) and 159(2)(d)
  • Civil Procedure RulesOrder 10 Rules 3, 4(1) and 10; Order 7 Rule 1; Order 13 Rule 2; Order 36 Rules 1 and 5

Cases cited (6)

  • Thomas Ratemo Ongeri & 2 others -vs- Zachariah Isaboke Njaata & Another
    Kisii High Court Environment and Land Court Case No. 95 of 2004 (2014) eKLR
  • Nancy Nyamira & Another -vs- Archer Dramond Morgan Ltd
    (2012) eKLR
  • Salume Namukasa -vs- Yosefu Bukya
    (1966) EA 433
  • Gitau -vs- Muriuki
    (1986) KLR 211
  • Job Kilach -vs- Nation Media Group Ltd & 2 Others
    (2015) eKLR
  • Magunga General Stores -vs- Pepco Distributors Ltd
    (1987) 2 KLR 150
Jurisdiction invoked
Original civil jurisdiction under the Civil Procedure Act, Cap 21 and the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Rockster Investment Limited & 4 others v Bofa Investment Limited [2017] KEELC 3178 (KLR)", Case Analysis (2017). Not stated in the judgment (Notice of Motion dated 25th October 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3178/eng@2017-04-21

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