[2009] KEHC 2125 (KLR)
The court found that the issues raised by the plaintiff in defence to the counterclaim—including the period of tenancy, mesne profits, and costs of repair and renovation—are substantive and bona fide disputes. These issues are not suitable for summary determination based on affidavit evidence alone. The court held...
Source-derived case information.
- Citation
- [2009] KEHC 2125 (KLR)
- Parties
- Plaintiff: Dynamic Institute of Management & Accountancy (DIMA) Ltd; Defendant: Apollo Insurance Co. Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 1271 of 2004
- Procedural Posture
- Civil Suit / Ruling on Application for Summary Judgment
- Outcome
- application for summary judgment dismissed
- Judges
- A Ali-Aroni
- Legal Topics
- Summary Judgment, Tenancy Disputes, Rent Arrears, Mesne Profits, Repairs and Renovations
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dynamic Institute of Management & Accountancy (DIMA) Ltd
Plaintiff
Apollo Insurance Co. Ltd
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Summary Judgment
Legal Issues
- 1 Whether the defendant/applicant is entitled to summary judgment for Kshs.23,736,717.50 as claimed in the counterclaim.
- 2 Whether there exist triable issues that warrant a full hearing rather than summary determination.
Ratio Decidendi
The court found that the issues raised by the plaintiff in defence to the counterclaim—including the period of tenancy, mesne profits, and costs of repair and renovation—are substantive and bona fide disputes. These issues are not suitable for summary determination based on affidavit evidence alone. The court held that the existence of such triable issues necessitates a full hearing, and therefore, summary judgment is not appropriate in this case. The application for summary judgment was dismissed with costs to the plaintiff/respondent.
Court Disposition
application for summary judgment dismissed
Orders
- The application for summary judgment is dismissed with costs.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Suit 1271 of 2004
DYNAMIC INSTITUTE OF MANAGEMENT &
ACCOUNTANCY (DIMA) LTD............. PLAINTIFF/RESPONDENT
VERSUS
APOLLO INSURANCE CO. LTD .......... DEFENDANT/APPLICANT
RULING
Before the court is an application dated 18th May, 2007 brought by the Defendant/Applicant by way of a Chamber Summons dated 18th May, 2007, under the provisions of Order XXXV Rules 1 (a) 2, 8 & 9 of the Civil Procedure Rules.
The application is for summary Judgment to be entered against the Plaintiff for Kshs.23,736,717. 50/= as prayed for in the counterclaim together with costs of the suit and interest and costs of the application.
The Plaintiff/Respondent opposes the application. It has filed Grounds of Opposition and a Replying Affidavit both dated 22nd November, 2007.
The suit herein arises out of a tenancy between the parties. The Defendant/Applicant was the Landlord whereas the Plaintiff/Respondent the tenant. The claim by the Defendant/Applicant is allegedly in respect of rent arrears, mesne profit and costs of repairs and renovations.
The Plaintiff/Respondent on their part contend that there is a dispute as to the period of occupation, rent payable, mesne profit, service charge and the amount claimed for repairs and renovations.
I have considered the pleadings on record and submissions by both counsels.
It is clear to me from the evidence adduced by the parties herein that the matter is protracted. The Defendant’s claim has been disputed by the Plaintiff more so the period of the tenancy, mesne profits and the costs of repair and renovation which form part of the claimed sum of Kshs.23,736,717. 50/= I find that issues raised in the defence for the counterclaim are issues triable at full hearing and not in a summary manner based on affidavits. In my view this is a matter best suited for full hearing.
I therefore decline to grant the summary Judgment and dismiss the application with costs.
Dated and delivered at Nairobi this 7th day of July, 2009.
ALI- ARONI
JUDGE