Automated Summary
Key Facts
Ezekiel Komen claimed K. Shs. 102,000/- from Mathew Birgen for an unpaid balance of a 2002 bar business purchase in Kaburuwo. Komen obtained a summary judgment after Birgen's defence was struck off for containing only general denials. The appeal argued the magistrate erred in granting summary judgment without addressing triable issues, but the Court of Appeal upheld the decision, dismissing the appeal as lacking merit.
Transaction Type
Purchase of bar business in Kaburuwo
Issues
- The second ground challenges the denial of unconditional leave to defend the suit. The appeal asserts a detailed defense was filed, which should have precluded summary judgment.
- The sixth ground claims the defendant made no admission of liability, which the court should have recognized as a basis for denying summary judgment. The appeal challenges the finding of implied admission.
- The third ground contends the defense raised triable issues requiring a full trial. The court's decision to proceed with summary judgment is questioned.
- The court examined whether the trial magistrate erred in failing to dismiss the respondent's application for summary judgment. The appeal argues the application did not meet the necessary criteria for summary judgment.
- The fifth ground argues the defense sufficiently rebutted the respondent's affidavit, which should have prevented summary judgment. The court's assessment of this rebuttal is contested.
- The fourth ground asserts the respondent's evidence was inadequate to justify summary judgment. The appeal challenges the sufficiency of the evidence presented.
Holdings
The appeal is dismissed with costs as it lacks merit. The learned trial Magistrate's conclusion that the defence contained mere denials and no triable issues was well merited, and there is no reason to interfere with it.
Remedies
The appeal was dismissed with costs, meaning the respondent (Ezekiel Komen) was awarded the costs of the proceedings in the Court of Appeal.
Contract Value
312000.00
Monetary Damages
102000.00
Legal Principles
The court applied the principle of burden of proof in assessing whether the appellant (Birgen) had sufficiently rebutted the respondent's (Komen) application for summary judgment. It emphasized that a defendant must raise bona fide triable issues to avoid summary judgment and that mere denials without evidence do not meet this threshold. The trial magistrate concluded the defence lacked merit, a finding upheld on appeal.
Precedent Name
- Commercial Advertising and General Agencies Limited v. Qureshi
- Gurbaksh Singh & Sons Limited v. Njiiri Emporium Limited
Cited Statute
Civil Procedure Rules, Order XXXV
Judge Name
Jeanne Gacheche
Passage Text
- I find that the learned trial Magistrate weighed the evidence for both parties and that her conclusion was well merited and I would find no reason to interfere with it.
- summary judgment is granted subject to there being no bona fide triable issue entitling the defendant to leave to defend. If a bona fide triable issue is raised, the defendant must be given unconditional leave to defend but not so in a case in which the court feels justified in thinking that the defence raised is a sham
- a liquidated claim is one that needs not further inquiry as to how much ought to be claimed..... An application for summary judgment cannot be allowed or applied in cases where a detailed defence has been filed, as the court cannot ignore the defence filed and proceed with the case by way of summary procedure
Damages / Relief Type
Liquidated Damages of K. Shs. 102,000/-