Automated Summary
Key Facts
Intrasoft International S.A. sued Verve K.O. Limited for breach of contract, claiming USD 373,100.01 plus interest under IT service agreements related to Kenya's HUDUMA project. The contracts stipulated Luxembourg law governs disputes, which the court previously accepted jurisdiction over due to the defendant's waiver. The court dismissed the plaintiff's summary judgment and judgment on admission applications, citing the need to first determine the applicability of Luxembourg law as a foreign legal question.
Transaction Type
Software and IT service contracts for HUDUMA project implementation
Issues
- Whether the Statement of Defence dated 9th June 2020 and Amended on 26th June 2020 are properly on record.
- Whether the Defendant has admitted the sum of USD 373,100.01 as claimed.
- Whether the application before court is competent in view of the law governing the contracts.
- Whether the Defendant's Replying Affidavits are valid.
Holdings
- The court determined that the application for summary judgment could not proceed without resolving the applicable law (Luxembourg law) and its interpretation, as the Plaintiff failed to prove the law of Luxembourg as it relates to their case.
- The court dismissed the Plaintiff's Notice of Motion dated 22nd May 2020 seeking summary judgment and judgment on admission. The dismissal was with costs, and the court directed the matter to be placed before the Deputy Registrar for reference to mediation.
Remedies
- The Notice of Motion dated 22nd May 2020 is dismissed with costs, as stipulated in the ruling.
- The court directs that the matter be placed before Deputy Registrar for reference to mediation.
Legal Principles
- The court relied on section 48 of the Evidence Act to permit expert opinions on foreign law (Luxembourg), acknowledging the admissibility of such evidence when determining legal questions.
- The court emphasized that the choice of law clause (Luxembourg law) is prima facie binding on the parties under the principle of pacta sunt servanda, requiring contractual obligations to be honored unless the law's application is proven inadmissible.
Precedent Name
- Evergreen Marine (Singapore) PTE Limited and Another v Petra Development Services Limited
- Choitram v Nazari
- Postal Corporation of Kenya vs. Inamdar & 2 Others
- Gupta v Continental Builders Ltd
- Isaac Awuondo V Surgipharm Limited & Another
Key Disputed Contract Clauses
- The contract requires all disputes to be finally settled by the competent courts of Luxembourg. The court determined this clause's applicability was key to assessing the validity of the summary judgment application.
- The contract stipulates that it shall be governed by the Laws of Luxembourg without reference to conflict of laws provisions. This clause became central to the court's analysis of jurisdiction and legal principles.
Cited Statute
Evidence Act
Judge Name
D. S. Majanja
Passage Text
- 11. The Notice of Motion dated 22nd May 2020 is dismissed with costs. I also direct that the matter be placed before Deputy Registrar for reference to mediation.
- 9. The meaning and application of foreign law is a question of fact. It is for this reason the court is entitled to call on the opinion of experts as provided for in section 48 of the Evidence Act...
- 16.1 This Contract shall be governed by and be construed and take effect in all respects in accordance with the Laws of Luxembourg without reference to conflict of laws provisions.
Damages / Relief Type
- General damages for breach of contract in the amount of USD 373,100.01 plus interest at 12M EURIBOR + 4% annually from March 2015 until payment in full
- Costs of the suit