[2003] KEHC 553 (KLR)
The court found that there were genuine disputes as to whether the Defendant entered into the transactions giving rise to the claim or whether the Plaintiff was dealing with a third party, as most invoices were addressed to a third party. The existence of these unresolved factual issues meant that the court could...
Source-derived case information.
- Citation
- [2003] KEHC 553 (KLR)
- Parties
- Plaintiff: Bawani Stores Limited; Defendant: Narok County Council
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- ? 264 of 2001
- Procedural Posture
- Civil Suit / Ruling on Summary Judgment Application
- Outcome
- application dismissed
- Legal Topics
- Summary Judgment, Contractual Liability, Local Purchase Orders, Invoice Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bawani Stores Limited
Plaintiff
Narok County Council
Defendant
Procedural Posture
Civil Suit / Ruling on Summary Judgment Application
Legal Issues
- 1 Whether the Plaintiff is entitled to summary judgment for the claimed amount based on the supplied goods and services.
- 2 Whether there exist triable issues regarding the validity of the Local Purchase Orders and invoices relied upon by the Plaintiff.
Ratio Decidendi
The court found that there were genuine disputes as to whether the Defendant entered into the transactions giving rise to the claim or whether the Plaintiff was dealing with a third party, as most invoices were addressed to a third party. The existence of these unresolved factual issues meant that the court could not confidently grant summary judgment. The Plaintiff's application was therefore dismissed, as summary judgment is inappropriate where triable issues exist.
Court Disposition
application dismissed
Orders
- The Plaintiff's application dated March 5, 2003 is dismissed with costs to the Defendant.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL SUIT NO. 264 OF 2001
BAWANI STORES LIMITED ……………………………………..PLAINTIFF
VERSUS
NAROK COUNTY COUNCIL ………………………………….DEFENDANT
RULING
This is an application under Order XXXV Rules 1 (a) and 2 of the Civil Procedure Rules (hereinafter referred to as “the Rules”). In it the Plaintiff seeks the following order:
“1. THAT this Court be pleased to enter Summary Judgment to the extent of Kshs. 592,122. 10 plus interest at the rate of 4% per month from the da te of default till full payment ….”
The application is supported by the affidavit of Mr. Satish Shah sworn on February 7, 2002. The Plaintiff’s case is that between 1995 and 1998 the Defendant ordered goods and services from it worth Kshs. 592,122. 10 which was payable upon delivery. In support of the claim was annexed copies of Local Purchase Orders and invoices issued by the Plaintiff to the affidavit of Mr. Shah. The Local Purchase Orders required supply of the goods and services to Purko Sheep Ranch to which most of the invoices were addressed.
In the Replying Affidavit of Joseph Kanyoni, the County Clerk of the Defendant, sworn on June 13, 2002 it was denied that the Plaintiff supplied goods and services to the Defendant as was alleged in the affidavit of Mr. Shah. He also stated that some invoices were not supported by any Local Purchase Orders.
There are numerous authorities that emphasize the point that Summary Judgment will not be entered where there are issues on which the Court is unable to form a firm opinion on the matters raised at the time of the order (see Kindanlal Restaurant v. Devshi Shrupy [1952] EACA Volume XIX at p. 77 cited with approval in Kirani Shah v. Veljee Devshi & Bakrania MILIMANI HCCC NO. 617 OF 1998. Looking at the Local Purchase Orders and invoices relied on by the Plaintiff and which are denied by the Defendant, it is difficult for this Court to confidently decide at this point whether the Defendant entered into the transaction leading to the claim or whether the Plaintiff was dealing with the Third Party in whose name most of the invoices were drawn. On this conclusion alone, the Plaintiff’s application must fail.
I, therefore, dismiss the Plaintiff’s application dated March 5, 2003 with costs to the Defendant.
Dated and Delivered at Nakuru this 17th day of June, 2003.
ALNASHIR VISRAM
JUDGE