[2009] KEHC 1624 (KLR)
The court found that the defence filed by the defendant raised triable issues that warranted a full hearing. The judge emphasized that summary judgment is an extreme remedy that should only be granted in cases that are plain, clear, and obvious, as established in Lacote Limited v Henry Oulo Ndede. Since the present...
Source-derived case information.
- Citation
- [2009] KEHC 1624 (KLR)
- Parties
- Plaintiff: Ahmed A. Sumra; Plaintiff: Sumra Engineering Works; Defendant: Southern Credit Banking Corporation Ltd
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 164 of 2008
- Procedural Posture
- Civil Suit / Ruling on Summary Judgment Application
- Outcome
- application dismissed
- Judges
- JV Juma
- Legal Topics
- Summary Judgment, Triable Issues, Defence Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ahmed A. Sumra
Plaintiff
Sumra Engineering Works
Plaintiff
Southern Credit Banking Corporation Ltd
Defendant
Procedural Posture
Civil Suit / Ruling on Summary Judgment Application
Legal Issues
- 1 Whether the case is suitable for summary judgment without a full hearing.
- 2 Whether the defence raises triable issues warranting a full trial.
Ratio Decidendi
The court found that the defence filed by the defendant raised triable issues that warranted a full hearing. The judge emphasized that summary judgment is an extreme remedy that should only be granted in cases that are plain, clear, and obvious, as established in Lacote Limited v Henry Oulo Ndede. Since the present case did not meet this threshold, and in order not to deny the defendant the right to present its defence, the application for summary judgment was dismissed. The matter was ordered to proceed to full hearing, with costs in the cause.
Court Disposition
application dismissed
Orders
- The application for summary judgment is dismissed in its entirety.
- The matter shall proceed to full hearing.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Civil Suit 164 of 2008
AHMED A. SUMRA ……………………………………............. 1ST PLAINTIFF
SUMRA ENGINEERING WORKS ………………...…………… 2ND PLAINTIFF
VERSUS
SOUTHERN CREDIT BANKING CORPORATION LTD ......…...... DEFENDANT
***********************
RULING
Before me is a Notice of Motion dated 31st July 2008 in which the Applicant seeks inter alia orders that:-
“Summary judgement be entered herein against the defendant in favour of the 1st plaintiff for the sum of Kshs.1,500,000/- together with interest thereon as prayed in the plaint”.
The application was opposed by the Respondent. It is trite law that summary judgement should only be entered by a court in cases where the court is of the opinion that there are no triable issues. Summary judgement is indeed an extreme ruling as in effect it disposes of the case without hearing from the Defendant. I am guided in this respect by the case of Lacote Limited –vs- Henry Oulo Ndede [2005] ekLR at page 2 where the Court of Appeal held that:-
“Summary procedure is a radical remedy and a court of law should be slow in resorting to the procedure which can only be applicable in plain, clear and obvious cases”.
I have had a look at the defence filed on 28th July 2008 and in my opinion it does raise triable issues. I am reluctant at this stage to shut the doors of justice against the Defendants as they have a right to present their defence before a competent court for evaluation. I do not consider this case to be “plain, clear and obvious” as per the Lacote decision. For the above reasons I hereby dismiss this present application in its entirety and order that the matter proceed to full hearing. Costs in the cause.
Dated and delivered at Mombasa this 30th day of July 2009.
M. ODERO
JUDGE
Read in open court in the presence of:-
Mr. Ochwa for Defendant/Respondent
Mr. Odero for Plaintiff
M. ODERO
JUDGE
30/7/2009