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

evasive, a mere blanket denial, a sham and aimed at delaying judgment with sequel expenses. The Affidavit in support of the instant Application was sworn by Elizabeth Jumah Nasimiyu (in this ruling referred to as ‘the Affiant’). The Affiant reiterated the grounds on the face of the instant Application. She added that vide a letter (EJN – 21), the Defendant/Respondent’s principal acknowledged owing her Kshs. 1,810,000/= and committed to settle all the amounts owed to her, hence her prayer for summary judgment against the Defendant/Respondent was merited. The Defendant/Respondent opposed the instant Application through a Replying Affidavit sworn by Felix Wanyama Juma, the Defendant’s Principal. He averred that the Defendant/Respondent’s Statement of Defence raised issues of non-compliance with the provisions of the Public Procurement and Asset Disposal Act, which, if found in the Defendant/Respondent’s favour, would render any purported contract between the Defendant/Respondent and the Plaintiff/Applicant a nullity. He added that their Defence on record denied privity of contract between the Defendant/Respondent and the Plaintiff/Applicant regarding the alleged contract for supply of assorted goods between the parties herein. Given the above, the Defendant/Respondent argued that their Statement of Defence on record raised triable issues that needed to be determined during the hearing of the main suit. In the circumstances, the Defendant/Respondent prayed that the instant Application be dismissed with costs. Parties canvassed the instant Application by way of written submissions. ANALYSIS & DETERMINATION Bungoma CMC CC. No. E546 of 2024 Page 2 of 8 Ruling

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Parties’ pleadings, submissions filed herein and the authorities relied upon by each party have been duly considered by this court. The issues that commend to this court for determination are: a) Whether a Notice of Motion can be amended b) Whether the instant Application is merited Whether a Notice of Motion can be amended The Defendant/Respondent submitted that the Amended Notice of Motion before this court was fatally defective, given that the law does not envisage the amendment of a Notice of Motion. They added that since a Notice of Motion was not a pleading within the meaning of section 2 of the Civil Procedure Act, the same can not be amended under Order 8 of the Civil Procedure Rules. They cited the holding by Havelock J in Fredrick Mwangi Nyaga v Garam Investments & another [2013] eKLR to support their position. This court had the benefit of going through the Fredrick Mwangi Nyaga case (supra). The holding in that case does not support the Defendant/Respondent’s position that a Notice of Motion ca not be amended. In that case, the learned Havelock J expressed himself thus: ‘…As a consequence of all the above, I find that although this Court has power to allow an amendment to the Plaintiff’s said Notice of Motion dated 14th June 2013 under the provisions of Order 8 Rule 5 as well as section 100 of the Civil Procedure Act, the fact that the Plaintiff has breached Rule 9 of the Oaths and Statutory Declarations Rules necessarily means that his Application to amend must fail. As I see it, his only option is to withdraw the same and file a fresh Application…’ This court’s understanding of the holding above is that whereas a Notice of Motion is not a pleading capable of being amended under Order 8 Rule 3 & 4 Bungoma CMC CC. No. E546 of 2024 Page 3 of 8 Ruling

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of the Civil Procedure Rules, it is a document that can be amended under Order 8 Rule 5 of the Civil Procedure Rules and section 100 of the Civil Procedure Act (see Diamond Trust Bank Kenya Limited v Invesco Assurance Company Limited & another [2021] eKLR). Be that as it may, this court is well aware that there are conflicting High Court decisions on whether a Notice of Motion can be amended. When faced with such a situation, a Magistrates Court is duty-bound to choose the school of thought to subscribe to. It is this court’s school of thought that a Notice of Motion, just like any other document and/or pleading, can be amended. The test on whether a Notice of Motion can be amended or not should be a substantive one, not a formalistic one. Where an amended Notice of Motion sets out with adequacy and particularity the nature of the orders sought and the grounds in support, no prejudice will be occasioned to the opposing party since such a party will be well aware of what that party is expected to respond to. With the advent of Article 159 (2) (d) of the Constitution of Kenya and the overriding objective of the Civil Procedure Act, in the absence of a demonstration of how an opposing party has been prejudiced by an amended Notice of Motion, holding that an Amended Notice of Motion is fatally defective, in this court’s considered view, will be akin to sacrificing substantive justice at the altar of procedural formalities. In any event, the Court of Appeal in Echaria v Echaria (Civil Appeal No. 247 of 1997 (unreported)) allowed an application for amendment of a Notice of Motion in the following terms: “We agree that the Notice of Motion is defective, that the defect is curable for that reason, and Ms Karua having applied for leave to amend the Notice of Motion, we grant leave for the Bungoma CMC CC. No. E546 of 2024 Page 4 of 8 Ruling

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respondent to amend the Notice of Motion so as to comply with the requirements of Rule 42 (1) of the Rules of the Court.” The Court of Appeal decision above shows that a Notice of Motion is capable of being amended. This court is bound by the stare decisis principle; the Court of Appeal decision binds this court. In Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 Others, SC Petition No. 2B of 2014 [2014] eKLR, the Supreme Court stated that Article 163 (7) of the Constitution is the embodiment of the time-hallowed common law doctrine of stare decisis. This court must uphold the Constitution. For the reasons above, and guided by the Echaria case (supra), this court finds and holds that the Amended Notice of Motion herein is properly before this court. Whether the instant Application is merited An Application for summary judgment is usually brought under Order 36 Rule 1 of the Civil Procedure Rules. Order 36 of the Civil Procedure Rules stipulates as follows: In all suits where a plaintiff seeks judgment for— (a) a liquidated demand with or without interest; or (b) the recovery of land, with or without a claim for rent or mesne profits, by a landlord from a tenant whose term has expired or been determined by notice to quit or been forfeited for non-payment of rent or for breach of covenant, or against persons claiming under such tenant or against a trespasser, where the defendant has appeared but not filed a defence the plaintiff may apply for judgment for the amount Bungoma CMC CC. No. E546 of 2024 Page 5 of 8 Ruling

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claimed, or part thereof, and interest, or for recovery of the land and rent or mesne profits. (Emphasis added) A reading of the above provisions of the law shows that an application for summary judgment is only tenable where the Defendant has entered appearance but has not filed a Statement of Defence within the prescribed time. The position above taken by this court finds support in the holding by Wabwoto J in Mwaviswa v National Land Commission (Environment & Land Case 644 of 2017) [2022] KEELRC 25 (KLR) where the learned judge eloquently rendered himself thus: “With regard to summary judgement, Order 36 Rule 1 of the Civil Procedure Rules clearly outlines that it can only be applied where the Defendant has entered appearance but has not filed a Defence. In paragraph 1 of the defence, reference is made to the allegations in the Amended plaint. For this reason, the Plaintiff’s submissions that no averments are made would fail. I am guided by the Court of Appeal case of ICDC vs Daber Enterprises Ltd (2000) 1 EA75, where it was stated that:-“...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. To justify summary Judgment, the matter must be plain and obvious and where it is not 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.”(Emphasis added) In this case the Defendant filed a Statement of Defence dated 03 rd February 2025, therefore, an Application for summary judgment before successfully applying for the striking out of the Statement of Defence on record is not tenable. Bungoma CMC CC. No. E546 of 2024 Page 6 of 8 Ruling

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Whereas the Plaintiff/Applicant termed the Defendant’s Statement of Defence herein as a sham and a mere blanket denial, he did not pray for an order for striking out of the same. Parties are bound by their pleadings. The prayer for summary judgment against the Defendant/Respondent, in the face of the Defendant’s Statement of Defence herein, could only have had a legal basis if the Plaintiff/Applicant had successfully prayed for the striking out of the said Statement of Defence. That aside, a reading of the Defendant’s Statement of Defence herein shows that it raises triable issues regarding compliance with the provisions of the Public Procurement and Asset Disposal Act. The Plaintiff/Applicant, on the other hand, submitted that given that the Defendant’s Principal admitted owing the Plaintiff/Applicant Kshs. 1,810,000/= through the letter dated 22 nd October 2024, a statute cannot be used to cloak fraud. The questions of whether or not a statute can be used to cloak fraud, whether or not a contract allegedly entered in contravention of the provisions of the Public Procurement and Asset Disposal Act is enforceable, whether an alleged admission of a debt breathes life to an alleged illegal contract, and whether the Plaintiff/Applicant who craves the aid of equity in realizing the alleged debt of Kshs. 1,810,000/= has approached the seat of equity with clean hands, are substantive issues of law and fact that cannot be determined through a summary procedure. All those issues can only be properly ventilated and determined through a full trial. DETERMINATION Accordingly, for the reasons set out above, the Applicant’s Amended Notice of Motion amended on 14 th April 2025 is bereft of merit; hence, the same is dismissed with costs. The costs of this Application be in the cause It is so ordered. Bungoma CMC CC. No. E546 of 2024 Page 7 of 8 Ruling

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Read, signed, and delivered in open court at Bungoma this 15 th day of May 2025 T.O. OMONO RESIDENT MAGISTRATE In the presence of: Simiyu for the Defendant/Respondent C/A: Albert Bungoma CMC CC. No. E546 of 2024 Page 8 of 8 Ruling

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