Background
1. This appeal emanates from the Ruling of the trial court in the TAMU PMCC No. E061 of 2023, in which the magistrate dismissed the Appellant’s (then the Plaintiff) application dated 31st July 2023 for summary judgment against the Respondent (then a defendant).
2. The background of the dispute is that by a Plaint dated 29th May 2023, the Appellant herein sued the Respondent claiming an amount of Kshs. 2,298,240.76 together with interest at the rate of 23% p.a from 21st April 2023 until payment in full, being the balance of the purchase price under an agreement of sale dated 12th July 2022 in which the Appellant sold to the Respondent three plots located within Muhoroni Sub-county, Kisumu County for an aggregate sum of Kshs. 81,668,000/-.
3. Following the filing of the plaint, the Appellant on 31st July 2023, filed a Notice of Motion Application seeking an order of summary judgment against the Respondent on the basis that the debt arose from a contractual obligation, and that the Respondent has no defence to the claim. In particular, the Appellant pleaded that:
i. Judgment be entered summarily against the Defendant for the liquidated sum of Kshs. 2, 298, 240.76 with interest accruing thereon at the rate of 123% per annum from 21st April 2023 until payment of the debt in full.
ii. The costs of this application be granted to the Defendant/Applicant
4. The Respondent opposed the application vide the affidavit sworn on 26th February 2024 by Martha Ayieko Joseph, the Respondent’s administrative director, arguing that its defence raised triable issues and that, therefore, the matter required a full trial.
5. On 14th May 2024, the trial court rendered its Ruling in the matter, dismissing the application for summary judgment, holding, among others, that the issues raised by the Defendant required trial to resolve. The Court also found that the application was untenable since the interest of 123% pleaded by the Appellant in the application was at variance with the agreement between the parties.
The Appeal
6. Aggrieved by the decision of the trial court, the Appellant appealed to this court vide a Memorandum of Appeal dated 7th June, 2024, preferring the following seven grounds of appeal:
i. That the learned magistrate erred in law by holding that the application by notice of motion dated the 23rd July 2023 is a pleading and by then finding that the Appellant had pleaded interest at the rate of 123% per annum;
ii. That the learned magistrate erred by failing to appreciate that the prayer for interest at the rate of 123% per annum contained in the application by notice of motion dated the 23rd July 2023 was a typographic error and by then holding that, without an application to amend, the court could not impute error on the part of the applicant;
iii. That the learned magistrate erred in law by failing to appreciate that the typographic error, contained in the application by notice of motion dated the 23rd July 2023 at the prayer for interest stating 123% per annum, was indeed capable of rectification upon the submissions seeking said correction by a reading of the correct rate of 23% per annum as pleaded in the pleadings, in the exercise of the court’s inherent jurisdiction under Section 3A.
iv. That the learned magistrate erred in law by failing to appreciate that to require a formal application to amend the typographic error contained in the application by notice of motion dated the 23rd July 2023 would be requiring a procedural technicality contrary to the provisions of Article 159(2)(d);
v. That the learned magistrate erred in fact by failing to appreciate the terms of the agreement for sale did in fact contain an explicit description of the property that excluded any crops or trees;
vi. That the learned magistrate erred in law by accepting the Respondent’s assertion for the introduction of parol evidence to establish terms limiting a vendor’s proprietorship rights upon execution of a sale agreement and payment of a deposit, notwithstanding the four corners rule and the rule against parol evidence;
vii. That the learned magistrate erred in law by accepting the Respondent’s assertion of an issue for trial being the question of active concealment of material facts on the part of the Appellant to obtain execution of the addendum to the sale agreement, notwithstanding the four corners rule and the rule against parol evidence;
viii. That the learned magistrate erred by finding the application untenable and dismissing it with costs.
7. The appeal was canvassed by way of written submissions. The Appellant’s submissions are dated 6th November 2024, whereas the Respondent’s submissions is dated 15th November 2024.
Appellant’s submissions
8. The Appellant argued the appeal under two major headings. The first issue taken up by the Appellant in its submissions was that the trial court erred by faling to find in the Appellant’s favour and by holding that the Appellant was bound by its pleadings in the notice of motion application dated 31st July 2023 where the Appellant had erroneously pleaded interest at the rate of 123%. The Appellant relied on the case of L Vadgama v Arya Samaj [1995] eKLR in this regard.
9. According to the Appellant, contrary to the finding by the trial court, a notice of motion application is not a pleading. Furthermore, the court had the power under the law to correct the error in the application (interest rate of 123%) as pleaded, since the same was in variance with the 23% pleaded in the Plaint, which was the same interest rate contained in the addendum agreement dated 17th October 2022, which had been produced by both the Appellant and the Respondent as part of the trial documents.
10. The Appellant maintains that the learned magistrate’s error caused an injustice that ought to be corrected by the recognition of the typographical error for what it is, and by the application of Article 159(2)(d) to overlook this error in the interest of justice or to correct it suo moto so that it reads 23% as it was clearly intended by the parties.
11. The second argument put forth by the Appellant in this appeal is that the learned magistrate completely disregarded the four corners rule of contract law and the rule against parol evidence in his consideration of what the parties had agreed to as the description of the property as stipulated by special condition (b) of the sale agreement, which invoked the Law Society Conditions of Sale 2015 and specifically Section 2(1)(q) thereof defining property as ‘land and buildings, which the Vendor has agreed to sell to the Purchaser and which is the subject matter of the sale as more particularly described in the Agreement as is constituted in the title document’.
12. The Appellant asserted that there was no provision in the agreement for trees and sugar-cane crops on the properties that were the subject of the sale agreement, consequently, the court erred in entertaing the Respondent’s assertions by parol evidence, that the subject sale agreement included sale of trees and sugar-cane crop on the properties.
13. The Appellant therefore urged this court to allow the appeal and set aside the trial court’s ruling dismissing the Appellant’s notice of motion application dated 23rd July 2023, and in its place, issue an order allowing the appeal and entering summary judgment as pleaded in the plaint.
Respondent’s submissions
14. On its part, the Respondent supported the trial court’s decision and submitted that the court was right in its finding that the interest rate of 123% per annum as claimed by the Appellant in the notice of motion application rendered the application incompetent since the same was at variance with the contractual rate.
15. The Respondent further submitted that the argument by the Appellant that a notice of motion application is not a pleading is not the correct position in law. Contrary to the Appellant’s assertions, the Respondent submits that the definition of the term “pleading” under Section 2 of the Civil Procedure Act is not exhaustive.
16. The Respondent urged that in any event, the task before the trial court was simply to find out if the defence filed by the Respondent raised any triable issues. The Respondent submitted that the trial court was right in its finding that the Respondent's defence raised triable issues since the Appellant never denied the fact that it harvested, sold, and kept for itself assets from the land it had sold to the Respondent. The question of whether or not those assets formed the basis of the purchase price, according to the Respondent, required a full trial.
17. The Respondent therefore urged this Court to dismiss the appeal with costs in its favour.
Analysis and Determination
18. This being a first appeal, the duty of this court is to re-evaluate and assess the evidence and make its own conclusions, keeping in mind that, unlike the appellate court, it did not have the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. In Peters vs Sunday Post Limited [1958] EA 424, the Court of Appeal stated that:
“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”
19. I have considered the grounds of appeal, the submissions by both parties together with cited authorities. Despite the fact that the Appellant has raised several grounds of appeal, the only issue emerging for determination is whether the trial court erred in dismissing the Appellant’s application for summary judgment.
20. It is a settled principle of law that summary judgment can only be granted where there is no defence or the defence raised is a mere sham or the defence raises no triable issues. 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.
21. 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 summary judgment. The burden then shifts to the defendant under Rule (2) of Order 36 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. Order 36 provides for summary judgment in the following terms:
“Summary judgment [Order 36, rule 1]
(1) 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, or for recovery of the land and rent or mesne profits.
Defendant may show cause [Order 36, rule 2]
The defendant may show either by affidavit, or by oral evidence, or otherwise that he should have leave to defend the suit.”
22. The Court of Appeal in determining an application for summary judgment in Dominion Farms Ltd vs Dimond Shield International [2014] KECA 179 (KLR) laid down the following guiding principles:
“The principles which guide our courts on applications for summary judgment are well settled. It was stated by this court in Industrial & Commercial Development Corporation v Daber Enterprises Limited [2000]1 EA 75 that the purpose of proceedings in an application for summary judgment is to enable a plaintiff to obtain a quick judgment where there is plainly no defence to the claim. To justify summary judgement, 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 the right to have his case tried by a proper trial where, if necessary, there has been discovery and oral evidence subjected to cross-examination.”
23. In Crown Health Care vs Jamu Imaging Centre Limited (2021) eKLR, Mativo J (as he then was), held that 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 stated that:
“For starters, the legal principles underpinning summary judgment are well settled. Summary judgment is to be granted only in the clearest cases and where there is no triable issue capable of going to trial. It is to be granted where the defense set up is a mere sham or a stratagem to delay trial…….
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. [emphasis added].
24. From the above, it is clear that due to the drastic and extraordinary effect of a summary judgment order, any doubt in the mind of the court as to whether there exists a triable issue must generally be resolved in favour of having the suit defended. I associate with the sentiments of the court in Crown Health Care (supra) that even where a defendant has not shown sufficient grounds resisting an application for summary judgment, the court still has the discretion to deny the application for summary judgment.
25. In the present case, I note that from the record that the Appellant sought summary judgment before the trial court on the grounds that the debt arose from a contractual obligation owed by the Respondent to the Appellant and the Respondent had no defence to the Appellant’s claim. The Respondent, on the other hand, claimed that the was a breach by the Appellant of their sale agreement for the sale of the parcels in question, when the Appellant harvested and sold the trees and sugarcane from the said parcels despite the land in question having been sold by the Appellant to the Respondent.
26. The question of whether or not the trees and sugarcane in question formed part of the sale agreement is, in the view of this court, a factual dispute that requires a full trial. Consequently, I do not agree with the Appellant’s argument in this appeal that the trial magistrate committed an error of law dismissing the Appellant’s application for summary judgment.
27. I have perused the record ad noted that the Respondent initially filed an application dated 29th June 2023 seeking the trial court to refer the matter for arbitration, which application was dismissed. Thereafter, the Respondent filed its defence to the claim. The Respondent’s defence concerned the harvesting of trees worth Kshs. 15,000,000/= as well as sugarcane after payment of the deposit of Kshs. 10,000,000/=. This fact was acknowledged by the Appellant through its advocates’ letter dated 6th February 2023.
28. The question as to whether a defence raises a triable issue was answered by the Court of Appeal in the case of Job Kilach vs Nation Media Group Ltd, Salaba Agencies Ltd & Michael Rono [2015] KECA 846 (KLR), where it held that;-
“Before the grant of summary judgment, the court must satisfy itself that there are no triable issues raised by the defendant, either in his statement of defence or in the affidavit in opposition to the application for summary judgment or in any other manner.
What then is a defence that raises no bona fide triable issue? A bona fide triable issue is any matter raised by the defendant that would require further interrogation by the court during a full trial. The Black’s Law Dictionary defines the term “triable” as, “subject or liable to judicial examination and trial”. It therefore does not need to be an issue that would succeed, but just one that warrants further intervention by the Court.”
29. The Respondent denied the Appellant’s claim as pleaded in the plaint. The issues raised by the Respondent regarding harvesting of trees worth Kshs. 15,000,000/= as well as the sugarcane after purchase of the properties by the Respondent is something which requires further scrutiny for the court to make a conclusive determination.
30. The Appellant has mainly built his appeal on the error on its application for summary judgment dated 31st July 2023, which erronously indicated that the interest payable was 123% instead of 23% as per the addendum agreement between the parties. The Appellant faulted the trial magistrate for failing to apply the provisions of Section 3A of the Civil Procedure Act and Article 159 of the Constitution to rectify the error on its own motion. It is, however, critical to note that the trial court’s decision was mainly based on the question of whether or not the defence raises triable issues.
31. In any event, this court agrees with the Respondent’s submissions that the trial court cannot be faulted in finding that the interest rate of 123% as pleaded in the Appellant’s notice of motion application for summary judgment was above the contractual rate of 23%. The error was the Appellant’s, and the Appellant had the opportunity to amend the same prior to the hearing of the application. Having failed to so amend, the court had the discretion either to amend the same suo motto, or to dismiss the application in the manner that it did in the instant case.
32. It is settled that this Court can only interfere with the judicial discretion of the trial court only in instances where this Court is satisfied that there was some misdirection on the part of the trial court, or where the decision appealed from is just plainly wrong. In the case of Mbogo and Another vs. Shah [1968] EA 93 where the Court stated:
“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”
33. In the instant case, this court finds no fault on the part of the trial court for its failure to suo motto amend the Appellant’s application for summary judgment and correct the Appellant’s own error, in its application, regarding the applicable interest rate.
34. Having said so, this Court is of the view that it is only fair and just that both parties are granted an opportunity to present their case before the trial court for hearing and determination on merit.
35. For the aforesaid reasons, I find the instant appeal to be without merit and hereby dismiss the same. On costs, I order that the same be in the cause.
36. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT
THIS 15TH DAY OF MAY 2025
ADO MOSES
JUDGE