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 (Mombasa ELC suit)

JAM v BOS [2019] KEELC 4477 (KLR)

Environment and Land Court
14 February 2019
1,601 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused to hand down quick judgment in a family land dispute because forgery claims can only be resolved at a full trial.

What this practically means

#

Executive summary

#
By a Notice of Motion dated 24th May 2018 under Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act and Order 36 Rule 1(b) and Order 1 Rule 13 of the Civil Procedure Rules, the plaintiff sought summary judgment as prayed in the plaint, or alternatively striking out the defendant's defence and counter-claim dated 12th January 2015, with costs. The dispute concerns property known as MSA/KILIMANJARO/[xx], purchased by the plaintiff while working in Saudi Arabia and registered in joint names. After divorce in Kadhi's Court, the defendant allegedly consented to transfer her share to the plaintiff but later changed her mind; the plaintiff sued, and a consent order was set aside by ruling on 7th May 2018. The plaintiff also complained of contempt of orders of 10th March 2016 and of the property having changed hands to a third party. The defendant filed no response to the application. The court framed the sole issue as whether summary judgment should be entered. Relying on Court of Appeal authority including ICDC v Daber Enterprises and Dhanjal Investments Ltd v Shabaha Investments Ltd, the court held that summary judgment is only appropriate where there is plainly no defence. The defendant's defence and counter-claim denied the sale agreement and transfer and accused the plaintiff of forging her signature, raising triable issues that must go to full trial. Granting summary judgment would oust the defendant from the judgment seat contrary to Articles 48 and 50(1) of the Constitution, rights that cannot be limited under Article 25. The court found no merit in the application, dismissed it, and ordered each party to bear their own costs given the defendant's non-participation in the application.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.whether on the facts and circumstances of this case the court should enter summary judgment in favour of the plaintiff against the defendant

Key legal issues

#
01

Whether summary judgment should be entered for the plaintiff

Holding

Summary judgment refused because the defence and counter-claim raise triable issues, principally the defendant's allegation that her signature on the sale agreement and transfer was forged

Reasoning

The court applied Order 36 Rule 1 and Court of Appeal authority that summary judgment is only available where there is plainly no defence. The defendant's denial of the sale agreement and transfer, and her accusation of forgery, constitute triable issues requiring trial with discovery and cross-examination. Entering summary judgment would amount to striking out the defence and denying the defendant access to justice and a fair hearing under Articles 48 and 50(1), rights that cannot be limited under Article 25.

p. 2

Legal principles established

#
  • Summary judgment cannot be granted where the defence raises bona fide triable issues; the defendant must be allowed to defend at a full trial
  • A defence raising triable issues need not be a defence that must succeed; it need only raise issues fit for trial

Court orders

#
  1. 1.The application dated 24th May 2018 is dismissed
  2. 2.Each party to bear their own costs

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act; Order 36 Rule 1(b) and Order 1 Rule 13 of the Civil Procedure Rules

Relief refused

#

Summary judgment as prayed in the plaint or, in the alternative, striking out of the defence and counter-claim dated 12th January 2015

The defence and counter-claim raise triable issues, including allegations of forgery, which must be determined at a full trial; granting summary judgment would oust the defendant from the judgment seat contrary to Articles 48, 50(1) and 25 of the Constitution

p. 2

Costs

Each party to bear their own costs, the defendant having filed no response.

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the end, I find no merit in the application dated 24 th May 2018 and proceed to dismiss it. As the defendant did not file any response, I order that each party bear their own costs.
p. 3Final orders - dismissal of the motion
The purpose of the proceedings in an application for summary judgment is to enable the plaintiff to obtain a quick judgment where there is plainly no defence to the claim.
p. 2Purpose of summary judgment procedure
Entering summary judgment against the defendant when the defence and counter-claim filed raises triable issues will have the effect of striking out the defence and counter-claim as filed and therefore ousting the defendant from the judgment seat
p. 2Access to justice and fair hearing
From the above decisions, it is clear that where there are no triable issues disclosed, the court cannot sustain a defence on record.
p. 2Test for sustaining a defence

Issues in the judgment

#
minor

Case number of the suit is not stated anywhere in the judgment

minor

Grounds on the face of the motion contain typographical errors, e.g. 'worth the taste'

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "JAM v BOS [2019] KEELC 4477 (KLR)", Case Analysis (2019). Not stated in judgment (Mombasa ELC suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4477/eng@2019-02-14

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