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ELCAllowedNot stated in judgment (Plaint filed 8th April 2014; Notice of Motion dated 19th June 2014)· [2017] KEELC 3624 (KLR)

Prakash Heda v Jane Wanja Miriti [2017] KEELC 3624 (KLR)

High Court of Kenya
27 January 2017
LGL GACHERU
2,200 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi buyer who paid a Ksh.2.5 million property deposit got an instant court order for its full refund because the vendor's defence was empty.

What this practically means

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Executive summary

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The Plaintiff/Applicant, Dr. Prakash Heda, moved the court by Notice of Motion dated 19th June 2014 under Order 36 Rule 1(1)(2) of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, seeking summary judgment for the liquidated sum of Ksh.2,500,000/- plus costs and interest. The claim arose from an agreement of sale dated 9th September 2013 for L.R. No. 3734/1101 Nairobi at Ksh.50,000,000/-. The applicant paid a deposit of Ksh.2,500,000/- under clause 3(a) of the agreement. The property was charged to the Bank of Africa, and the applicant averred that the vendor failed to avail the title and outstanding loan balance, the transaction collapsed, and despite a demand and completion notice the deposit was never refunded. The Defendant, though served, filed no replying affidavit; the application proceeded by written submissions. The applicant relied on authorities establishing that summary judgment applies where the defence is a sham or mere denial. The court applied the tests in Lion of Kenya Insurance, Trust Bank v Unvestech and the National Industrial Credit Bank cases, finding that the deposit was proved paid per annexture DPH1, that the defence denying receipt was a mere denial meant to delay refund, and that upon collapse of the transaction the vendor was contractually obliged to refund the deposit. The Notice of Motion was allowed entirely in terms of prayer No.1, with costs to the Plaintiff/Applicant borne by the Defendant/Respondent. Judgment dated, signed and delivered at Nairobi on 27th January 2017 by L. Gacheru J.

Key legal issues

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01

Entitlement to summary judgment on a liquidated demand

Holding

Summary judgment was warranted because the deposit of Ksh.2,500,000/- was proved paid and the defence denial was a sham

Reasoning

The court found the sale agreement dated 9th September 2013 and payment of the Ksh.2,500,000/- deposit established by annexture DPH1. The defendant's defence denying receipt contradicted the documentary evidence and was a mere denial meant to delay refund of the deposit after the transaction collapsed.

p. 4
02

Vendor's obligation to refund deposit on collapse of the transaction

Holding

Once the transaction collapsed the vendor was obliged to refund the deposit per the sale agreement

Reasoning

Clause 3(a) provided for payment of the deposit before execution of the agreement, and clause 10 governed refund on collapse. The defendant having failed to complete and the transaction having collapsed, she should have refunded the deposit without demand.

p. 4

Legal principles established

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  • A defendant who has appeared must show no defence or only a sham defence for summary judgment to issue
  • A mere denial on general traverse is not a sufficient defence

Court orders

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  1. 1.Judgment entered in favour of the Plaintiff/Applicant against the Defendant/Respondent for the liquidated sum of Ksh.2,500,000/- together with costs and interest as prayed for in the Plaint (prayer No.1 granted entirely)
  2. 2.Costs of the application and of the suit to be borne by the Defendant/Respondent
Jurisdiction invoked
Order 36 Rule 1(1)(2) of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act

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, "Prakash Heda v Jane Wanja Miriti [2017] KEELC 3624 (KLR)", Case Analysis (2017). Not stated in judgment (Plaint filed 8th April 2014; Notice of Motion dated 19th June 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3624/eng@2017-01-27

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