[1998] KEHC 105 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA

AT NAIROBI (NAIROBI LAW COURTS)

Civil Case 2268 of 1978

FRANCIS MUIRU ................................................................. PLAINTIFF Versus UNITED TOURING COMPANY LIMITED...................DEFENDANT

JUDGEMENT

The Plaintiff who went to school up to standard six,was employed by the defendant as a driver. The latter's business is the operation of tours. It seems the plaintiff's initial appointment was on temporary basis. Sometime in1976, his appointment was formalized and he was given a written letter of appointment. These contains in a nutshellhis terms and conditions of service. Paragraph 9 of that contract, reserves to the defendant, the right to dismiss the Plaintiff summarily and the grounds on which it may do so

"Sometime in April 1976, the Plaintiff who had hitherto beenstationed here in Nairobi was transferred to a town calledSamburu Game Lodge. It is one of the defendant’s outposts .On or about the 18th September 1976, the Plaintiffwas instructed to bring his vehicle to Nairobi. It was aMini Bus and the object of the vehicle being brought to Nairobiwas to make some repairs to the roof. The Plaintiffaccordingly brought the vehicle to the Defendant's yard inNairobi. While here, he took opportunity to make requisitionfor some spare parts which he required for the bus. At thattime, a man called John Maxwell Chepkwony was in charge ofthe stores.

The items he requisitioned for were supplied the Administrator of her husband's estate limited to representingthe estate in a suit intended to be filed for recovery of theunpaid debt. The order was granted by Mbogholi J. on 30. 10. 95 andthe main suit was filed on the same day. The Administrator of theestate filed a defence on 21. 11. 95 through M/s Gikandi & Co.Advocates denying the indebtness and put Roma to strict proofthereof.

Before that defence was filed, Roma had applied exparte andobtained an order for attachment of the deceaseds property assecurity pending the hearing of the suit. Some goods were attachedpursuant to that order before the Administrator rushed to court toseek a stay of execution and the setting aside of the order forattachment before judgment. When the application for attachmentbefore judgment came up for hearing inter partes, Mbogholi J. foundthat there was no basis disclosed in the affidavit that thedefendant would leave the jurisdiction of the court, to warrant thegrant of the order. He dismissed the application and lifted theattachment of the goods already made. That was on 2. 11. 1995.

Roma, the plaintiff returned to court on 21. 12. 95 and filed aNotice of Motion under Order 35 Rule 1 & 2 seeking summary judgmentfor the sum claimed in the plaint. That was the application thatwas argued before me and the subject matter of this Ruling.

I observe that when the application came up for hearing forthe first time on 19. 6.96 before Ang'awa J. Mr. Gikandi sought anadjournment on the ground that he had tried to contact his clients since he was served with the Application in March 1996, but he had not heard from them. He had not therefore filed any Affidavit to show that the defendant should have leave to defend the suit. The matter was then adjourned but was relisted for hearing on 25. 6.97.

It would appear that by that time Mr. Gikandi had not heard from his client and so on the morning of the hearing date he filed his own Affidavit in reply. He also filed grounds of opposition. The matter was adjourned on that day, and on 26. 8.97, with the consent of both counsel. When it came up finally on 22. 10. 97, there was still the Affidavit of Mr. Gikandi on record and none from the defendant or any other person.

This state of affairs elicited the submission from Mr. Aboo for the Applicant that the Affidavit of Mr. Gikandi was in contravention of Order 18 Rule 3 of the Civil Procedure Rules and it should be struck off the record. He submitted that Mr. Gikandi was not in a position to swear to the truth of what he states since he was unable to find his client and did not disclose the source of his information, despite the statement in the last paragraph that "all that is desposed is true to the best of my knowledge and belief save such information sources of which have been disclosed".

Mr. Aboo went through the six substantive paragraphs of the affidavit to show that there was no disclosure of any source of information nor were the grounds of belief on such information stated. In essence, he submitted, all Mr. Gikandi was doing was to raise a debate on factual matters on which he had no knowledge about. It is an argumentative affidavit which neither admits nordenies the factual matters stated in the Applicant's Affidavit. Itappears to query the accuracy of the actual figures on the amountdue while in the same breath there is a general denial in thedefence that no single cent is due. The same goes for the chequesalleged to have been issued and dishonoured and a note by thedeceased showing that some money would be transferred to theApplicant's Account in settlement of the debt. No reference hasbeen made to these facts as Mr. Gikandi was not in a position toswear to the truth on the contrary. He does not say he was apartner in the business. He does not disclose where his client is.The Affidavit is simply incompetent. Mr. Aboo cited Caspair Ltd, -Vs- Gandy [19621 EA 414 for the proposition that such an Affidavitshould not be acted upon.

In response to this aspect of the matter Mr. Gikandi chose tosteer clear of the attacks made on his Affidavit and instead dwelton the merits of the plaintiff's application.

I suspect that Mr. Gikandi steared clear of defending hisAffidavit because he was aware that it was not defensible. Thereare clear and mandatory provisions under Order 18 Rule 3(1) thatAffidavits shall be confined to such facts as the deponent is ableof his own knowledge to prove. Mr. Gikandi did not purport to bein any position to prove facts relating to transactions madebetween the parties in this suit. The proviso that ininterlocutory matters statement of information and belief may be stated is qualified by disclosure of sources of such informationand the grounds of such belief. I have perused the Affidavit inreply sworn by Mr. Gikandi on 25. 6.96 and I fully agree with theattacks levelled at it by Mr. Aboo. I also accept that theauthority cited, Caspair Ltd. case applies to the Affidavit in thiscase and I accordingly decline to rely on any matters stated in Mr..Gikandi's Affidavit.

As for the merits of the application, Mr. Aboo relied on thesupporting Affidavit sworn by Rukiya Ali Mohamed Gullied, theplaintiffs Director who had full knowledge of the transactionsbetween the parties. He annexed copies of various invoices anddelivery Notes addressed to the defendant's Firm between 5th August1995 and 25th September 1995. Those were the two months precedingthe death of the proprietor of the Firm. He further referred toand annexed a bundle of cheques issued by the deceased between31. 8.95 and 25. 9.95 amounting to Shs. 2,595,383 towards payment forthe goods supplied which cheques were dishonoured upon presentationfor payment. The last annexure is a note dated 4. 10. 95 from thedeceased to the deponent informing him that a sum of US $ 65,000had been deposited in the deceaseds' account and the Bank Managerhad been instructed to transfer the money to the plaintiff'sAccount once the amount was cleared. That amount translated at thetime to approximately Kshs. 3. 5 million. No transfer was ever madeof that sum.

Mr. Aboo therefore submitted that with all such evidence, the defendant cannot be heard to file the defence as now filed denyingany indebtness at all. Summary judgment should be entered but ifthe court was inclined to give conditional leave to defend them theprincipal sum should be deposited as security in court.

On the merits of the Application, Mr. Gikandi submitted thatthe onus is on the Applicant to show that there are no triableissues. It must also be shown that there is a plain and obviouscase for summary judgment before orders are given. In his viewthere is no clear Account proved to show the balance due. Allthere is are copies of invoices supporting a claim of Shs. 1. 5million and copies of delivery notes which show deliveries todifferent Firms and some of the delivery notes are not signed.They do not show how the goods were delivered and who receivedthem. Considering that the claim is a big one, these mattersshould not be taken lightly. Whether the goods were supplied andwere properly receipted would be a triable issue, he submitted. Healso submitted that it was apparent that the sum of US $ 65,000 waspaid over to the plaintiffs and if so they cannot demand paymenttwice over. This would be a triable issue. As for the cheques, hesubmitted that they ought not to be introduced in this applicationas they never featured in the pleadings as required under the Billsof Exchange Act Section 27 - 28. The case should therefore go forfull hearing to determine the many issues that it poses. Theplaintiffs counsel had infact asked for two days of trial in theSummons for Directions and should not now be heard to request for summary judgment instead of proceeding with the hearing. He citedCity Printing Works (K)Ltd. -Vs- Bailey [1977] KAR 85 whichfollowed Zolla -Vs- Ralli Brothers [1969] E.A. 69 on the principlesapplicable in applications for summary judgment. There is no plainand obvious case presented here and therefore the Applicationshould not be granted.

Responding to these submissions Mr. Aboo pointed out that thedelivery notes were directed at the Firms admitted in an earlierAffidavit of the deceaseds son, one NAKASH PATHAK to have belongedto the deceased. There can be no submission of the goods havingbeen delivered to other persons. In any event there is nowhere inthese proceedings where the validity of the delivery notes isdisputed.

Secondly it is admitted that the cheques exhibited were issuedby the deceased and were dishonoured. If the note referring to US$ 65,000 was meant as a replacement for these cheques, then it waswithin the powers of the defendant to show that the money wastransferred to the plaintiff's Account and not to expect theplaintiff to show that it was not transferred. The Current Accountin which the US Dollars were deposited belonged to the deceased andnot to the plaintiff.

Mr. -Aboo further submitted that the bounced cheques were inissue long before the defence was filed but no comment has beenmade thereon. The suit is not based on those cheques but on goodssold and delivered. The cheques are only presented as evidence of attempted payment which failed, and therefore the Bills of ExchangeAct does not apply.

There has been no attempt since the defence was filed to amendit or include a counter claim or set off and therefore there is asyet no challenge to the plaintiff's claim.

I have considered these submissions fully. I do not agree with Mr. Gikandi that the onus is on an applicant invoking Order 35 Civil Procedure Rules to show that there are no triable issues before an order for summary judgment is granted. The only onus I see imposed on the Applicant under Rule 1 (2) is to file a Notice of Motion and support it by an Affidavit either of the plaintiff or of some other person who can swear positively to the facts verifying the cause of action and any amount claimed. Once that onus is discharged, then it is for the Defendant/Respondent to show either by Affidavit or by oral evidence or otherwise that he should have leave to defend the suit. That is the clear provision of Order 35 Rule 2(1) Civil Procedure Rules. As was stated by Madan J.A. in Gupta -Vs- Continental Builders Ltd. CA 33/77.

"If a defendant is able to raise a prima facietriable issue, he is, entitled in law tounconditional leave to defend. On the otherhand if no prima facie triable issue is put forward to the claim of the plaintiff it isthe duty of the court forthwith to entersummary judgment for it is as much againstnatural justice to shut out without propercause a litigant from defending himself as it is to keep a plaintiff out of his dues in aproper case."

I must therefore examine whether the parties have discharged the onus placed on them. In doing so, I have to look at

".... the plaint, the defence the counterclaimand reply to defence, if any, and Affidavitsin support of and in reply as also allrelevant issues and circumstances (which) area proper material for consideration. Nothingis immaterial which helps justice to be done.Nothing is extraneous which helps to preventinjustice being done". - per Madan J.A. inContinental Butchery Ltd. ~Vs- Musila CA 35/77

The amount pleaded is the balance of agreed or reasonable price for goods sold and delivered to the defendant during the year 1995. A straightforward pleading which ought to have been specifically denied or admitted and if payment had been made then particulars of how it was made. The statement of defence is however general and contains no particulars of any payment having been made.

The Affidavit verifying the claim refers to several invoices, delivery Notes, dishonoured cheques and a note in the hand of the defendant making reference to payment being made to the plaintiffs.

The defendant was expected to refer to these documents and either admit or deny them or otherwise make comments on oath or orally on oath. I have already declined to act on the purported Affidavit in reply sworn by the defendants Advocate. This means that the supporting Affidavit of the plaintiff stands uncontroverted. I am in no doubt that the plaintiff/applicant supplied various goods to the deceased who was trading in several business names in Kilifiand Malindi. There is no averment that those goods were paid for.On the contrary there is evidence which I accept that there was anattempt to pay for the goods through various cheques which weredishonoured and that there was a promise by the deceased totransfer US $ 65,000 to the plaintiffs subsequent to the dishonourof these cheques. There is no evidence that such promised transferof funds was effected. I see no possible defence that goods weresupplied to the deceased.

An issue may however arise as to the exact amount that is dueto the plaintiff. That is because the plaintiff does not come outclearly to support a supply of goods worth Shs. 3,051,883, apayment of Shs. 90,000, a Credit Note of Shs. 170,000 for returnedgoods leaving a balance of Shs. 2,791,883 which is pleaded in theplaint. What emerges from the verifying Affidavit are invoiceswhich in my calculation total Shs.1,256,521 or Shs 1. 5 as observedby Mr. Gikandi; Dishonoured cheques which amount to Shs.2,595,383,; and a promised transfer of a payment of US $ 65,000which translates to a sum in excess of Kshs.3. 5 million. Why itwas not possible to verify the amount claimed in the plaint withexactitude may or may not be explicable. For my part I do not wishto resolve that uncertainty in this application,

That does not destract from my finding that goods weresupplied to the defendant and there is no evidence that they werefully paid for, I am inclined to think that they were not and that the defence is far from genuine Cheques amounting to Shs. 2,595,383 could not have been issued by the deceased for nothing. I accept as submitted that they are evidence of part payment for the goods supplied in the two months before the deceased died. I would in the circumstances enter judgment for that sum. I will neverthelessgive an opportunity to the defendant to interrogate the plaintiff on the balance of the amount claimed, a hearing date for which shall be taken in the Registry. To that extent the application succeeds with half the costs of the application to the plaintiff/applicant and the full costs of the successful claim inthe main suit to the plaintiff.

Dated at Mombasa this 21stday of January 1998.

P.N. Waki

JUDGE