William Kungu Kinyanjui v Stephanie Carol Grantham (sued As The Legal Representative of The Estate of David Jonathan Grantham)

also contends that the Plaintiff’s claim, as framed, would result in a duplicative or inflated recovery of interest. 4. I have considered the Motion, the affidavits, and the rival submissions. I have also considered the authorities cited by counsel and the applicable law. 5. The principles governing summary judgment are settled. Summary judgment is available where the claim is plain and obvious and the defendant has no bona fide defence. But the procedure is not meant to shut out a litigant where there is an arguable question of law, construction, or fact requiring ventilation at trial. In Industrial and Commercial Development Corporation v Daber Enterprises Limited the Court of Appeal held that unless the matter is plain and obvious, a party ought not to be deprived of the right to a full trial, and that summary procedure exists for cases where there is plainly no defence. 6. The same approach appears in Five Forty Aviation Limited v Tradewinds Aviation Services Limited, where the Court of Appeal reaffirmed that a triable issue does not mean one that must succeed. It is enough if the defence raises a prima facie issue fit to go to trial, and even a single bona fide triable issue is sufficient to entitle a defendant to leave to defend. 7. On the other hand, I accept the Plaintiff’s submission, founded on National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & another, that a court of law cannot rewrite a contract for parties and that parties are ordinarily bound by the terms of their bargain unless vitiating factors such as fraud, coercion, or undue influence are pleaded and proved. That principle, however, does not conclude the present application in the Plaintiff’s favour. It simply means that the dispute must be resolved by construing the operative contractual instrument correctly. 8. In the present case, the real controversy is not whether there was borrowing in the first place. The real controversy is narrower but material. It concerns which instrument governs the claim for interest after the parties entered into the Deed of Settlement dated 20th May 2022, the date from which interest properly accrued under that Deed, and whether the pleaded 12% rate attaches to both the USD and Kshs components or only to one of them. Those questions are not peripheral. They go directly to the amount, if any, for which summary judgment may properly be entered. 9. The Plaintiff’s own amended plaint shows that the claim is not confined to a single admitted liquidated sum simpliciter, but includes multiple heads of interest calculated across different periods and at different rates. The Defendant’s response is that those calculations are inconsistent with the Deed of Settlement. Whether that contention is right or wrong is not the point at this stage. The point is that it is not idle. It is a serious question of contractual construction and computation which, on the material before the Court, cannot be dismissed as sham. 10. I am therefore not satisfied that this is one of those plain and obvious cases in which summary judgment should issue. The defence, at least in relation to interest and the proper construction of the Deed of Settlement, discloses bona fide triable issues. That is sufficient to defeat the prayer for summary judgment. 11. As regards the amendment and substitution, the Plaintiff states that those prayers were not opposed, and the Defendant’s own submissions indicate that substitution had already been addressed by consent and was treated as a non-issue. In the circumstances, and there being no demonstrated prejudice, the amendment to regularise the record should be allowed. 12. Accordingly, I make the following orders: 1. Leave is hereby granted to the Plaintiff to amend the plaint so as to reflect Stephanie Carol Grantham as the Defendant, sued as the legal representative of the Estate of David Jonathan https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5825/eng@2026-04-30 2

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Grantham. The amended plaint filed pursuant to leave is deemed as properly on record upon payment of any requisite court fees, if not already paid. 13. 2. The prayer for summary judgment is declined. 3. The Defendant shall have leave to defend the suit. 4. The costs of the prayer for amendment shall be in the cause. 5. The costs of the prayer for summary judgment are awarded to the Defendant. It is so ordered. DATED AND SIGNED AT NAIROBI, THE 30TH DAY OF APRIL 2026. DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS. ALEEM VISRAM, FCIArb JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5825/eng@2026-04-30 3

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