[2017] KEHC 10013 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

COMMERCIAL AND TAX DIVISION

CIVIL CASE NO. 542 OF 2014

CLAYTOWN VALUERS LIMITED..........................................................PLAINTIFF

JOE M. NZIOKAT/A NZIOKA & COMPANY ADVOCATES....1ST DEFENDANT

AFRISON EXPORTS & IMPORT LIMITED..............................2ND DEFENDANT

HUELANDS LIMITED.................................................................3RD DEFENDANT

RULING

1. The application dated 16th March 2017 seeks Summary Judgement and Judgement on Admission, as against the 2nd defendant, AFRISON EXPORT & IMPORT LIMITED.

2. It is the plaintiff’s case that the Defendant had admitted having instructed the plaintiff, CLAYTOWN VALUERS LIMITED.

3. According to the plaintiff, if the 2nd defendant had remitted payment to the 1st defendant, JOE M. NZIOKA Trading As NZIOKA & COMPANY ADVOCATES, who was supposed to transmit it to the plaintiff, then the said 2nd defendant ought to have sought indemnity from the 1st defendant.

4. As the 2nd defendant did not file proceedings to seek indemnity against the 1st defendant, the plaintiff said that the 2nd defendant had failed to show cause why judgement should not be entered against it.

5. Another point which was made by the plaintiff is that the 2nd defendant did not deny that there was an outstanding fee.

6. Therefore, the plaintiff urged the court to grant summary judgement, on the grounds that the Defence on record did not raise any triable issues.

7. It is well settled that when a defendant raises a bona fide triable issue, the court ought to grant him leave to canvass his said appeal, at a full trial.

8. On the other hand, when there was plainly no defence to the plaintiff’s claim, it was only fair and just that the court should grant summary judgement. It has been emphasized over and over again, that ordinarily, each party ought to be given an opportunity to put forward his defence through production of evidence and also through the cross-examination of the plaintiff’s witnesses. That is the reason why summary judgement can only be granted where the plaintiff’s case was plain and obvious.

9. In the case of GUPTA Vs CONTINENTAL BUILDERS LIMITED [1976-80] 1 KLR 809, Madan J.A (as he then was) said;

“If a defendant is able to raise a prima facie triable issue, he is entitled in law to unconditional leave to defend. On the other hand, if no prima facie triable issue is put forward to the claim of the plaintiff, it is the duty of the court forthwith to enter summary judgement, for it is as much against natural justice to shut out without proper cause, a litigant from defending himself as it is to keep a plaintiff out of his dues in a proper case. Prima facie triable issues ought to be allowed to go to trial, just as a sham or bogus defence ought to be rejected peremptorily?.

10. A triable issue may arise when there were disputed facts or when the parties had inconsistent or contradictory understanding of the law applicable to the matter before the court.

11. In this case, the plaintiff submitted that there was an admission, that the 1st defendant was acting on behalf of the 2nd and 3rd defendants.

12. The plaintiff also submitted that the defendants had admitted having engaged the services of the plaintiff.

13. On the other hand, the defendants submitted that they could not be liable for the failure by the 1st defendant to remit payment to the plaintiff.

14. Secondly, the 2nd and 3rd defendants said that they had no direct engagements with the plaintiff.

15. I have given careful consideration to the pleadings on record, the submissions made and the authorities cited by the parties.

16. I note that at paragraph 5 of the plaint, it is expressly stated that the person who gave instructions to the plaintiff was the 1st defendant. Therefore, that pleading appears to echo the defendants’ position.

17. At paragraph 6 of the plaint, it was said that the 1st Defendant gave his Professional Undertaking to the plaintiff. The said undertaking was to the effect that it is the 1st defendant who would;

“…pay the plaintiff the valuation fees as agreed and according to scale, within Ninety (90) days of the execution of the aforesaid valuation exercise?.

18. The Defence confirms that position.

19. In effect, I understand the defendants to be saying that the responsibility of paying the plaintiff, vested on the 1st defendant.

20. Having been instructed, the plaintiff undertook the valuation exercise;

“...as instructed by the 1st Defendant…?; and thereafter the plaintiff submitted its Report, to the 1st Defendant”.

21. In answer to that issue, the defendants stated that they never received the Report which had been allegedly given to the 1st defendant by the plaintiff.

22. Nonetheless, the defendants stated that the sum of Kshs. 9,101, 650/- was paid by the 2nd and 3rd defendants, to the 1st defendant. They explained that the payment was made to the 1st defendant because it is he who was acting for the other 2 defendants.

23. Nowhere in the Defence is there any admission that the sums claimed by the plaintiff were still outstanding.

24. If anything, the 2nd and 3rd defendants said that they had discharged their obligation, by making payment to their advocate, JOE M. NZIOKA. In the circumstances, as the plaintiff has not demonstrated any nexus between it and the 2nd and 3rd defendants, I find that there arises a bona fide triable issue, concerning how the plaintiff can lawfully demand payment from those 2 defendants.

25. Another triable issue that arises is in relation to the effect of the Professional Undertaking which was given by the advocate, to the plaintiff.

26. Ordinarily, when an advocate gives his professional undertaking, it is a commitment by him that he will do whatever it is that he said he would. The advocate has the obligation to obtain from his client, or from whichever source, that which he requires in order to meet his promise. If he promised to make payment, it cannot be an excuse that his client had not provided him with the requisite funds.

27. In effect, an advocate would ordinarily not transfer to his client the task of honouring the undertaking which the advocate had given.

28. On a prima facie basis I hold the view that the plaintiff will have to prove how the responsibility arising from the professional undertaking given by advocate Joe M. Nzioka, can transmit to the clients of the said advocate, the responsibility for that undertaking.

29. In a nutshell, this is not a plain and obvious case, in which summary judgement can be granted.

30. I also find no Admission upon which I can base a judgement against the 2nd defendant.

31. Finally, I have found no reason which would justify a judgement against only the 2nd defendant, whilst appearing to exonerate the 3rd defendant, yet the defence by the 2nd defendants was the same.

32. In the result the application dated 16th March 2017 is dismissed with costs.

DATED, SIGNED and DELIVERED at NAIROBI this5th dayof October2017.

FRED A. OCHIENG

JUDGE

Ruling read in open court in the presence of

Nyamufor the Plaintiff

Owino for the 1st Defendant

No appearance for the 2nd Defendant

No appearance for the 3rd Defendant

Collins Odhiambo – Court clerk.