JAM v BOS [2019] KEELC 4477 (KLR)
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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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
#Whether summary judgment should be entered for the plaintiff
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
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.
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.The application dated 24th May 2018 is dismissed
- 2.Each party to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
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.
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.
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
From the above decisions, it is clear that where there are no triable issues disclosed, the court cannot sustain a defence on record.
Issues in the judgment
#Case number of the suit is not stated anywhere in the judgment
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.