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MagistrateDismissedCMC CC. No. E546 of 2024· [2025] KEMC 440 (KLR)

Stery Company Ltd v Board of Management Bukembe High School (Civil Case E546 of 2024) [2025] KEMC 440 (KLR)

Chief Magistrate's Court, Bungoma
15 May 2025
TOT.O. Omono
2,043 words in judgment
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The bottom line

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The Bungoma Magistrate's Court dismissed a summary judgment application because the defendant had already filed a defence raising genuine trial issues.

What this practically means

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Executive summary

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The Plaintiff/Applicant, Elizabeth Jumah Nasimiyu, sued the Defendant/Respondent for Kshs. 1,810,000/= being unpaid consideration for assorted goods supplied in 2021 under Local Purchase Orders following a successful tender. She moved the court by an Amended Notice of Motion amended on 14th April 2025 under Sections 3A and 63(e) of the Civil Procedure Act and Orders 36 and 51 of the Civil Procedure Rules, seeking summary judgment as prayed in the Plaint, supported by an affidavit recording an alleged written acknowledgment of the debt by the Defendant's Principal. The Defendant opposed through a Replying Affidavit of Felix Wanyama Juma, contending that the defence raised non-compliance with the Public Procurement and Asset Disposal Act, which could nullify the contract, and denied privity of contract. The court first framed two issues: whether a Notice of Motion can be amended, and whether the application was merited. On the first, acknowledging conflicting High Court authority but bound by the Court of Appeal's decision in Echaria v Echaria and the stare decisis principle under Article 163(7), it held the amended Motion properly before the court, applying a substantive rather than formalistic test. On the second, the court held that summary judgment under Order 36 Rule 1 lies only where no defence has been filed; a Statement of Defence dated 3rd February 2025 was on record, and the Plaintiff had not sought its striking out. The defence raised triable issues - procurement law compliance, whether a statute can cloak fraud, and whether an admission of debt validates an allegedly illegal contract - fit only for full trial. The application was dismissed with costs, costs of the application to be in the cause.

Key legal issues

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01

Whether a Notice of Motion can be amended

Holding

Yes - the Amended Notice of Motion was properly before the court

Reasoning

The court acknowledged conflicting High Court authority but, bound by stare decisis under Article 163(7), followed the Court of Appeal in Echaria v Echaria which allowed amendment of a Notice of Motion. It held the test should be substantive rather than formalistic: where an amended Motion sets out the orders sought and grounds with adequacy and no prejudice is shown, defectiveness should not defeat substantive justice under Article 159(2)(d).

p. 4
02

Whether summary judgment was merited despite a Statement of Defence on record

Holding

No - the application for summary judgment was untenable

Reasoning

Order 36 Rule 1 permits summary judgment only where the defendant has appeared and not filed a defence. The Defendant had filed a Statement of Defence, and the Plaintiff had not sought its striking out, to which parties are bound by their pleadings. The defence raised triable issues on compliance with the Public Procurement and Asset Disposal Act, on whether a statute can cloak fraud, and on whether an admitted debt validates an allegedly illegal contract - matters only determinable at full trial.

p. 7

Legal principles established

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  • A Notice of Motion is not a pleading amendable under Order 8 Rules 3 & 4, but it can be amended under Order 8 Rule 5 of the Civil Procedure Rules and section 100 of the Civil Procedure Act; substantively adequate amendments should be allowed absent prejudice.
  • Summary judgment under Order 36 Rule 1 is only tenable where the defendant has entered appearance but has not filed a Statement of Defence.

Court orders

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  1. 1.The Applicant's Amended Notice of Motion amended on 14th April 2025 is dismissed
  2. 2.The costs of the Application be in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 3A, 63(e), 2, 100
  • Civil Procedure RulesOrder 36 Rule 1, Order 51 Rule 1, Order 8 Rules 3, 4, 5
  • Constitution of KenyaArticles 159(2)(d), 163(7)
  • Public Procurement and Asset Disposal Actnot specified

Cases cited (6)

  • Fredrick Mwangi Nyaga v Garam Investments & another
    [2013] eKLR
  • Diamond Trust Bank Kenya Limited v Invesco Assurance Company Limited & another
    [2021] eKLR
  • Echaria v Echaria
    Civil Appeal No. 247 of 1997 (unreported)
  • Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 Others
    SC Petition No. 2B of 2014 [2014] eKLR
  • Mwaviswa v National Land Commission
    (Environment & Land Case 644 of 2017) [2022] KEELRC 25 (KLR)
  • ICDC vs Daber Enterprises Ltd
    (2000) 1 EA 75
Jurisdiction invoked
Sections 3A & 63(e) of the Civil Procedure Act; Order 36 Rule 1 and Order 51 Rule 1 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, "Stery Company Ltd v Board of Management Bukembe High School (Civil Case E546 of 2024) [2025] KEMC 440 (KLR)", Case Analysis (2025). CMC CC. No. E546 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/440/eng@2025-05-15

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