[2017] KEHC 2209 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CIVIL APPEAL NO. 190 OF 2013

MERCY NDUTA MWANGI T/A

MWANGI KENG’ARA & COMPANY ADVOCATES…........APPELLANT

VERSUS

INVESCO ASSURANCE COMPANY LIMITED…......….RESPONDENT

(Being an Appeal against the ruling of Hon. A. A. Odawa delivered on 18th September, 2013 in Machakos CMCC No. 459 of 2013)

JUDGEMENT

1. It is an uncontroverted fact that the appellant herein defended the respondent in Machakos PMCC No. 671 of 2006, David K. Muthungu v. Mutinda Makau and Jackson Mulwa. The appellant thereafter filed High Court Miscellaneous Civil Application No. 236 of 2006 Mercy Nduta T/A Mwangi Keng’ara & Co. Advocates v. Invesco Assurance Co. Limited wherein her bill of costs is said to have been on 30th October, 2007 taxed at Kshs. 79,678. 70 plus interest at 14% until payment in full. She filed the suit before the lower court to seek payment of the said sum which she claimed she demanded to no avail. The respondent in response to the appellant’s claim filed a defence in which it contended that it did not owe the appellant the said money for the reason that it had settled all sums due to the appellant with regards to the appellant’s conduct of the suit. The respondent in its defence contended that the appellant was not entitled to claim any sum from it as all fees due to the appellant had been settled to finality.

2. In protest the appellant filed a notice of motion dated 20th June, 2013 seeking the striking out of the memorandum of appearance and defence and that judgment be entered as prayed in its amended plaint. The appellant contended that she on 17th October, 2006 filed an advocate/client bill of costs and served the same on the defendant on 19th October, 2006. That the bill of costs in High Court Miscellaneous Civil Application No. 236 of 2006 was taxed on 30th October, 2007 at KShs. 79,678. 70 all inclusive. That the certificate of taxation was served upon the defendant on 10th January, 2008 even though the respondent received it under protest on grounds that the amount had already been paid in full. That soon thereafter on 15th January, 2008, she wrote to the respondent protesting the remarks made on the certificate of taxation. That from the aforesaid, the respondent had not only been aware of the bill of costs but also the certificate of taxation and her claim of unpaid fees since 17th October, 2006. That the certificate of taxation is a final order of the court and draws interest thereon from the date of taxation until payment in full hence the claim for accrued interest from 30th October, 2006 to 21st May, 2013 at Kshs. 62,087/- is lawful and proper. That she paid KShs. 100/- for the certificate of taxation and the respondent is liable to pay the same. She contended that the respondent had not satisfied the certificate of taxation or made any payment in respect of the same since the certificate of taxation was issued by the court hence the issues of accounts being taken does not arise. That the defence filed is scandalous and is otherwise an abuse of court process.

3. In response to the motion, the respondent filed a replying affidavit on 17th July, 2013. It contended that the memorandum of appearance was duly filed on 14th June, 2013 and served upon the plaintiff on 21stJune, 2013 and the allegation that the appellant was not served is in bad faith. That the defence raises credible defence that ought to be determined on merit. He contended that the respondent instructed the appellant to defend it in Machakos PMCC No. 671 of 2003 and subsequently paid out the sum raised by the appellant’s fee note. It was contended that the appellant went ahead to file a bill of costs and taxed it despite the fact that her legal fees had been fully settled. The trial court determined the motion and dismissed it.

4. Aggrieved by the ruling, the appellant filed this appeal on the following grounds:

a) That the learned magistrate erred in law and fact in declining to strike out the defence and enter judgment despite the overwhelming evidence.

b) That the learned magistrate erred in law and fact in basing her decision on mere averments in the defence and replying affidavit which were unsupported by substantive proof in arriving at her decision.

c) That the learned magistrate erred in law and fact in entertaining the respondent’s submissions that the taxed costs had been paid, without proof of the same.

d) That the learned magistrate erred in law and in fact in failing to appreciate the strict liability imposed by the law to an unpaid certificate of taxation.

e) That the learned magistrate erred in law and fact in finding that the respondent had denied knowledge of the bill of costs allegedly taxed and the High Court Civil Misc. No. 236 of 2006, which was beyond her jurisdiction and or the proceedings before the court.

f) That the learned magistrate erred in law and in fact in failing to find that despite the respondent having sought leave to file a supplementary affidavit to place the evidence of payment before court, the respondent had failed to do so and thereby treat the failure as an indicator of lack of evidence by the respondent.

g) That the learned magistrate erred in law and fact in failing to find that the defence did not raise any triable issues to warrant a full hearing and thereby going against the spirit of the law to accord an expeditious and affordable disposal of the appellant’s case.

h) That the learned magistrate erred in law and in fact in finding that the matter should proceed to full trial.

i) That the learned magistrate erred in law and fact in dismissing the application dated 20th June, 2013.

5. It was the appellant’s submission that once a certificate of taxation is issued it is final unless it is set aside or varied by a court. That the respondent knew of the existence of the certificate of taxation thereby its defence was vexatious and scandalous. In support of her case the appellant cited Owino Okeyo& Co. Advocates v. Fuelex Kenya Limited (2005) eKLR, Lubulellah & Associates Advocates v. N.K. Brothers Limited (2014) e KLR, Nairobi HCCC No. 2185 of 2001, Horkman Investment Limited v. Namayuk Self Help Group and Nairobi Court of Appeal CA No. 253 of 2014, George Karunji and Vivo Energy Kenya Limited (Initial Party Kenya Shell Limited).It was further argued that there was no evidence to persuade the court that that trial was necessary.

6. The respondent’s submissions are not on record. I have duly considered the appeal herein. The issues falling for determination are:

a) Whether or not the respondent’s defence raises any triable issue or is a sham and should be struck out; and

b) Whether or not summary judgment should have been entered in favour of the appellant.

7. The Court of Appeal in Job Kilach v.Nation Media Group Ltd, Salaba Agencies Ltd & Michael Rono [2015] eKLR observed that:

“Before the grant of summary judgment, the court must satisfy itself that there are no triable issues raised by the defendant, either in his statement of defence or in the affidavit in opposition to the application for summary judgment or in any other manner. What then is a defence that raises no bona fide triable issue" A bona fide triable issue is any matter raised by the defendant that would require further interrogation by the court during a full trial. The Black's Law Dictionary defines the term “triable” as, “subject or liable to judicial examination and trial.” It therefore does not need to be an issue that would succeed, but just one that warrants further intervention by the Court.”

8. In Guptav. Continental Builders Ltd [1976-80] 1 KLR 809, Madan JA stated that:

“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 sham or bogus defence ought to be rejected peremptorily.”

11. A triable issue is said to exist if there is a dispute in the facts, which dispute can only be resolved after ventilation in a full hearing. In the case of Giciem Construction Company v. Amalgamated Trade & Services LLR No 103 (CAK) this Court stated:

“As a general principle, where a defendant shows that he has a fair case for defence or reasonable grounds for setting up a defence or even a fair probability that he has a bona fide defence, he ought to have leave to defend. Leave to defend must be given unless it is clear that there is no real substantial question to be tried; that there is no dispute as to the facts or law which raises a reasonable doubt that the plaintiff is entitled to judgment.” (Emphasis added)

A bona fide triable issue needs not to be one that must succeed.”(Emphasis mine).

9. In Lalji t/a Vakkep Building Contractors v.Casousel Ltd (1989) KLR Nyarangi,Platt JJA and Kwach, Ag JA) held:

“…A trial must be ordered if a triable issue is found or one which if fairly arguable is found to exist.”

10. Applying the tests herein, while the appellant argue that the respondent was aware of the certificate of taxation, it must be noted that the respondent’s position was that it had settled the appellant’s fees and the bill of costs was not applicable or was null and void. It is noteworthy that in its defence, the respondent contended that it had fully settled the appellant’s fees. Black’s Law Dictionary defines triable issues as “subject or liable to judicial examination and trial.” That is to mean that matters ought to be specifically pleaded for judicial examination.

11. In Nairobi Flour Mills Limited v. Johnson Kithete t/a Farmers General Stores (2005) eKLR it was stated that:

“on the issue of whether the draft defence raises any triable issues. In paragraph 4 of the draft defence the defendant state:-

“The defendant admits having been supplied with some goods by the plaintiff which he fully paid for but avers that they did not amount KShs. 4,770,255. 70”.

To reiterate the defendant admits having been supplied by the plaintiff with some goods. The defendant did not give particulars of the said “some goods” and that just exposes the draft defence to be a mere denial…I find and hold that the defendants’ defence does not raise triable issues to the plaintiff’s claim.”

12. Elsewhere in Diamond Trust Bank (K) Ltd v. Martin Ngombo& 8 Others (2005) eKLROuko J, (as he then was) held which holding I share:

“This summary procedure is intended to give quick remedy to the plaintiff which is being delayed in realizing his claim against the defendant by what is generally described as sham defence…The jurisprudence that passes through the above cases is that a mere denial or general traverse is not sufficient defence and that a defence that has no merit is for striking out.”

13. In my view, the contention that the respondent made full payment of the appellant’s fee is a contentious issue that can only be in this circumstance determined by full hearing. As the Respondent had clearly raised an issue that the Appellants’ fees had been fully paid, I find the same was ipso facto a triable issue warranting the trial court to determine it. Hence I find the trial court was correct dismissing the Appellant’s Notice of Motion. In view of the foregoing I find that this appeal lacks merit. It is dismissed with costs to the Respondent.

It is so ordered.

Dated, Signed and Delivered at Machakos this 3rdday of November, 2017.

D.K. KEMEI

JUDGE

In the presence of:

Mutuku for Mwangi for the Appellant

No appearance for G. Kingara for the Respondent

Mungai - Court Assistant