Mugendi v Directline Assurance Company Limited (Civil Case E011 of 2025) [2025] KEMC 379 (KLR)

going to trial. It is to be granted where the defense set up is a mere sham or a stratagem to delay trial. Order 36 Rule 1(1) (a) of the Civil Procedure Rules provides that in all suits where the Plaintiff seeks judgment for a liquidated sum with or without interest he may apply for judgment. The burden then shifts to the defendant at Rule (2) to demonstrate by affidavit or otherwise that he should be granted leave to defend. Such leave will be granted if the defendant demonstrates he has a good defense to the action. This position of the law is buttressed by section 25 (b) (ii) as read with section 81 (2) (f) of the Civil Procedure Act. In Wenlock v Moloney and Others [1965] 1 W.L.R. 1238 it was held that unless the matter is plain and obvious, a party to a civil litigation is not to be deprived of his right to have his case tried by a proper trial where, if necessary, there has been discovery and oral evidence subject to cross-examination. The purpose of the proceedings in an application for summary judgment is to enable a Plaintiff to obtain a quick judgment where there is plainly no defense to the claim. And where the defendant’s only suggested defense is a point of law and the court can see at once that the point is misconceived or, if arguable, can be shown shortly to be plainly unsustainable, the plaintiff will be entitled to judgment. The summary nature of the proceedings should not, however, be allowed to become a means for obtaining, in effect, an immediate trial of the action, for it is only if an arguable question of law or construction is short and depends on few documents that the procedure is suitable. Summary judgment is appropriate when the applicant shows that there is no genuine dispute as to any material fact and the applicant is entitled to judgment as a matter of law. The applicant bears the initial burden of informing the court of the basis for its motion and of identifying those materials that demonstrate the absence of a genuine issue of material fact. A fact is “material” if it might affect the outcome of the case under the governing substantive law. A dispute is “genuine” if the record taken as a whole could lead a rational trier of fact to find for the Respondent. All the evidence and factual inferences reasonably drawn from the evidence must be viewed in the light most favourable to the Respondent. The quest for summary judgment is based on a trite argument that there are no triable issues of fact and the motion is initiated by a Plaintiff that contends that all the necessary factual issues are settled and, therefore, need not be tried. If there are triable issues of fact in any cause of action or if it is unclear whether there are such triable issues, summary judgment must be refused as to that cause of action. The purpose of the summary judgment procedure is to afford an innocent Plaintiff who has an unanswerable case against an elusive defendant a much speedier remedy than that of waiting for the conclusion of an action. The Court has an overriding discretion whether on the facts averred by the Plaintiff, it should grant summary judgment or on the basis of the defense raised by the defendants, it should refuse it. Such discretion is unfettered. If the court has a doubt as to whether the Plaintiff’s case is

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unanswerable at trial such doubt should be exercised in favour of the defendant and summary judgment should be refused. Court further relies on the provision in Blue Shield Insurance Company Ltd v Joseph Mboya Oguttu [2009] eKLR in which the court stated: “At the base of it, it was seeking striking out a pleading and entering judgment in terms spelt out in the plaint. The principles guiding the Court when considering such an application which seeks striking out of a pleading is now well settled. Madan J.A. (as he then was) in his judgment in the case of D.T. Dobie and Company (Kenya) Ltd vs Muchina (1982) KLR 1 discussed the issue at length and although what was before him was an application under Order 6 rule 13 (1) (a) which was seeking striking out a plaint on grounds that it did not disclose a reasonable cause of action against the defendant, he nonetheless dealt with broad principles which in effect covered all other aspects where striking out a pleading or part of a pleading is sought. It was held in that case inter alia as follows:“The power to strike out should be exercised after the Court has considered all facts, but it must not embark on the merits of the case itself as this is solely reserved for the trial Judge. On an application to strike out pleadings, no opinion should be expressed as this would prejudice fair trial and would restrict the freedom of the trial Judge in disposing the case.” ” The test is whether on the set of facts before it, the court is able to conclude that the defence raised by the defendant is bogus or is bad in law. What falls to be determined by this court is whether, on the facts alleged by the plaintiff in its particulars of claim, it should grant summary judgment or whether the defendant’s opposing affidavit discloses such a bona fide defence that it should refuse summary judgment. The court must be satisfied that the defence is a sham; and that it raises no bona fide triable issue worth a trial by the court. Turning to the facts of this case, the defendant denies the claim and its knowledge of the accident and also denies the issue of compliance with Section 10(2) of the Insurance (motor vehicle third party Risks) Act. To this Court, the Defence by the Respondent raises a triable issue. Court has perused the Respondent’s defence and notes that it did not admit to settling any claim but that it denied the issue as to the statutory notices being issued pursuant to the above-mentioned law. Conclusion The Court therefore dismisses the application to strike out the Defendant’s defence and declines to enter summary judgment in favour of the Applicant as against the Respondent. Noting the circumstances of the case and the fact that there was no response filed by the Defendant/Respondent, there shall be no orders as to costs. This is the order of the Court.

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Dated and delivered at Chuka Law Courts by Hon. Tracy Wanjiku Wachira this 5 th day of August 2025. In the presence of :Counsel for the Applicant Counsel for the Respondent Kelvin Mawera-Court Assistant

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