[1996] KEHC 33 (KLR)
The court found that the defence raised by the plaintiff, specifically the denial of subletting and the nature of the business conducted on the premises, constituted prima facie triable issues. These factual and legal disputes regarding the alleged breach of the lease agreement could not be resolved summarily and...
Source-derived case information.
- Citation
- [1996] KEHC 33 (KLR)
- Parties
- Plaintiff: Manstyle Limited; Defendant: Kabansora Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1465 of 1994
- Procedural Posture
- Civil Case / Ruling on Summary Judgment Application
- Outcome
- application for summary judgment dismissed with costs to the plaintiff
- Legal Topics
- Summary Judgment, Triable Issues, Breach of Contract, Lease Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Manstyle Limited
Plaintiff
Kabansora Limited
Defendant
Procedural Posture
Civil Case / Ruling on Summary Judgment Application
Legal Issues
- 1 Whether the plaintiff unlawfully sublet the suit premises in breach of the lease agreement.
- 2 Whether the defendant is entitled to summary judgment and vacant possession based on the alleged breach.
- 3 Whether the defence raises prima facie triable issues warranting a full trial.
Ratio Decidendi
The court found that the defence raised by the plaintiff, specifically the denial of subletting and the nature of the business conducted on the premises, constituted prima facie triable issues. These factual and legal disputes regarding the alleged breach of the lease agreement could not be resolved summarily and warranted a full trial. Accordingly, the application for summary judgment was dismissed, as it would be unjust to deny the plaintiff the opportunity to defend the counterclaim where genuine issues for trial exist.
Court Disposition
application for summary judgment dismissed with costs to the plaintiff
Orders
- The defendant's application for summary judgment is dismissed.
- Costs of the application are awarded to the plaintiff.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA
AT NAIROBI CIVIL CASE NO. 1465 OF 1994
MANSTYLE LIMITED..................................PLAINTIFF
VERSUS
KABANSORA LIMITED...............................DEFENDANT
RULING
This is an application by Defendant under O.XXXV.r.1 (a) and 2 of Civil Procedure Rules for summary judgment against the plaintiff in favour of the Defendant as prayed in the counter claim. In the counter claim filed on 31. 8.94 the Defendant claims that the plaintiff breached a fundamental term of the contract of lease by unlawfully subletting the premises in the suit to various parties so defendant prays for an order that the plaintiff do deliver up vacant possession of the premises to the defendant. Damages for breach of contract and costs. The plaintiff a defence to the counter-claim denying subletting the suit premises and the right the defendant has to terminate.
The application is supported by affidavit sworn on 13. 9.94 by Grace Wamunyu Nyachae confirming that plaintiff has no reasonable defence.
The plaintiff ELIZABETH MAINA has countered this in her affidavit dated 8. 11. 94 saying the business she put up of accommodating business executives looking for temporary working areas and that it is not subletting.
The principle formulated by our courts in relation summary judgment is in the court of appeal decision in GUPTA VERSUS CONTINENTAL BUILDERS LIMITED (1978) KLR 83 - where it says:
“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 judgment 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 shun or bogus defence ought to be rejected presumptorily”.
In this application there are issues of fact relating to whether the plaintiff sublet the suit premises. There is also the issue of law whether this or any other breaches amounted to fundamental breach.
I believe that the defence raises prima facie triable issues that ought o be allowed to proceed to trial.
I accordingly dissallow the application and dismiss it with cost to the plaintiff.
Dated at Nairobi this 18th day of January, 1996.
A.I. HAYANGA
JUDGE
18. 1.1996
Coram: A.I. Hayanga
Mr. Njenga for plaintiff/respondent
No appearance for respondent
Ruling read on 18. 1.1996
A.I. HAYANGA
JUDGE