GEORGE OKOYO OMONDI VS THOMAS MUKHWANA

(Being an Appeal against the part of judgment of the Hon. D.O. MBEJA PM delivered on 30^th November 2022 CMCC NO.671 OF 2022 at Mombasa Law Courts)

1. The Appellant being dissatisfied with the Ruling delivered by Hon. D.O. MBEJA PM  filed this  Appeal on the following grounds: -
2. THAT the learned magistrate erred in law and in fact by allowing the application for summary judgment when a Defence and Counter claim is on record thus arriving at a wrong Ruling.
3. THAT the learned Magistrate erred in law and in fact by entering the summary judgment without striking out the Defence and Counter Claim hence arriving at wrong Ruling.
4. THAT the learned Magistrate erred in law and un failing to consider that the Respondent had a Defencce that raises triable issues which could only be canvassed at the full hearing hence arriving at a wrong Ruling.
5. THAT the learned Magistrate erred in law and in fact in allowing the application as prayed despite the fact that there was no prayer for striking out the Defence and Counter claim thus arriving at a wrong Ruling.
6. THAT the learned Magistrate erred in law and in fact in allowing the application which was incompetent and over taken by events since the Appellant had filed the Defence and Counter claim hence arriving at a wrong Ruling

THAT the learned Magistrate erred in law and in fact in relying on a non-existent  supporting affidavit of Priscah Muia thus arriving at a wrong Ruling.

It is proposed to ask the court for the following Orders namely: -

1. THAT this Appeal be allowed with costs.
2. THAT the Ruling and decree of the Magistrate Court dated 30^th November 2022 be set aside and in lie thereafter an Order be made dismissing the application dated 24^th June 2022.
3. The facts of this case are that the appellant and the respondent  entered into a motor vehicle sale agreement based on quotation dated 26.2.2019  for motor vehicle Toyota Hilux Surf Id no. 3924, year 2006/08  , chassis no TRN215-0013012,CC -2609 black in colour  which was on transit at the price of Kshs. 1,620,000/=. The respondent paid the said price as followed Kshs  950,000/= vide cheque No. 00135 and Kshs 670,000/= vide cheque no. vide cheque no 00135 dated 27.2.19 and 6.3.19 respectively.
4. The  appellant later delivered to respondent motor vehicle registration no KCE  600 P chassis TRN 2150024965 Engine no 2TR-032784 Contrary to the said quotation.
5. Later on, as the respondent was driving the said vehicle when he was arrested and the vehicle impounded for having been registered fraudulently. He led the police to the residence of appellant and he was also picked up and they were taken to Central police station Mombasa and later moved to DCI headquarters in Nairobi `where the vehicle was retained till they produce the  shipping documents of the said vehicle .
6. Vide the demand letter dated 7.3.22, the advocate for respondent made a demand notice to the appellant to refund the said price but he responded vide letter dated 16.5.23 that he could only so that upon the respondent returning the vehicle to back to him as there was no evidence that the vehicle was impounded but that he was robbed off the same .
7. The respondent subsequently filed Mombasa CMCC no. 671 of 2022   seeking refund of the said price . the appellant filed a defence and counterclaim in which he admitted selling the vehicle to the respondent at Kshs 1,620,000/= but denied  owing the said money to respondent saying that he sold the vehicle to him and handled over its possession to respondent  and that he can only refund the price upon the vehicle being returned back to him by respondent  . Further that the respondent should not involve DCI in the alleged impounding of the vehicle matter. In the counterclaim he sought that respondent returns the vehicle to him before he can refund him the price  .
8. The respondent filed a reply to defence and counterclaim in which he joined issue with defendant and denied that he is in possession of the  vehicle . the allegations in the counterclaim were denied and he pleaded that the appellant defrauded him .
9. The respondent later filed notice of motion dated 24.6.22 seeking summary judgment on the grounds that the defence was a sham too general and it did not raise any triable issues and that the appellant was truly indebted to it . the appellant filed a replying affidavit dated 30.6.22 in which he stated that he had a good defence which raised triable issues , that he delivered the vehicle to respondent , the he is a stranger to allegations of his arrest and impounding of the vehicle and that no one was charged with fraud in respect of the said vehicle .
10. The learned  trial Magistrate delivered a ruling dated 30.11.22 in which he allowed the application on the ground that the defence did not raise triable issues .
11. The appellant submitted that xxx Order 36 Rule 1 of the Civil Procedure Rules, it is provided that:

"In all suits where a plaintiff seeks judgment for--

(a) a liquidated demand with or without interest; or

(b) ....

where the defendant has appeared but not filed a defence the Plaintiff may apply for judgment for the amount claimed, or part thereof and interest..."it is thus clear that this provision has nothing to do with the application dated ……………….

Order 2 rule 15 of the Civil procedure rules provides for striking out of pleadings :

In the bICDC vs. Daber Enterprises Ltd (2000) 1 EA 75 :

"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."

1. I have seen the defence of the appellant filed in the lower court in which he pleaded that he delivered the vehicle to the respondent and thus if the appellant is demanding refund of the price then he should return the vehicle to him first. He denied that the vehicle was impounded by police as alleged  and put the respondent to strict proof . the appellant does not deny that he sold the vehicle to respondent and received the price. What he denies is that the vehicle was impounded by police as its documents were fraudulent.  The respondent annexed a document looking like summons to him to appear before DCI in Nairobi .
2. In an application for summary judgment the respondent need to  establish that he has defence which is merited but one which raises triable issues. The issue on whether the motor vehicle was impounded by police for having forged documents  is a matter which can only be determined on full trial .
3. In the upshot the appeal is allowed and orders of the trial magistrate allowing summary Judgmentare set aside .
4. Costs of the Appeal are awarded  to the appellant at Kshs. 50,000/= .
5. Mention on   16.5.24 before the  Chief Magistrate Mombasa  (Court 1 ) for directions on hearing dates .

DELIVERED VIRTUALY VIA TEAMS PLATFORM IN THE PRESENCE OF ;

Aphline court assistant . parties absent .