[2012] KEHC 4508 (KLR)

[2012] KEHC 4508 (KLR)

The High Court held that the trial magistrate erred in setting aside the summary judgment by way of review. The respondent did not demonstrate any new and important matter or evidence that was not within his knowledge at the time of the original proceedings, nor did he exercise due diligence. The application for review was made after an inordinate delay and was not the proper remedy; the respondent should have appealed the summary judgment. Furthermore, the affidavit in support of the review application was defective as it was commissioned by an advocate without a valid practicing certificate. The consents entered into by the parties and the respondent's repeated defaults further...

Citation
[2012] KEHC 4508 (KLR)
Parties
Appellant: Sona Information Technologies Ltd; Respondent: Asher Akal Onyango t/a Elegance Uniform Centre
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
23 March 2012
Case Number
Civil Appeal 32 of 2007
Procedural Posture
Civil Appeal / Judgment on Appeal From Ruling of Subordinate Court
Outcome
appeal allowed; summary judgment reinstated; review application dismissed; costs to appellant
Legal Topics
Contract Enforcement, Summary Judgment, Review of Judgment, Sale of Goods, Frustration of Contract
Source Language
English
Commercial and Corporate Contract Enforcement Summary Judgment Review of Judgment Sale of Goods Frustration of Contract

Case Brief

Summary, issues, holding and outcome

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Parties

Sona Information Technologies Ltd

Appellant

Asher Akal Onyango t/a Elegance Uniform Centre

Respondent

Procedural Posture

Civil Appeal / Judgment on Appeal From Ruling of Subordinate Court

Legal Issues

  1. 1 Whether the trial magistrate erred in setting aside the summary judgment by way of review.
  2. 2 Whether the respondent met the threshold for review under Order 45 rule 1 of the Civil Procedure Rules.
  3. 3 Whether the affidavit in support of the review application was valid given it was commissioned by an advocate without a practicing certificate.

Ratio Decidendi

The High Court held that the trial magistrate erred in setting aside the summary judgment by way of review. The respondent did not demonstrate any new and important matter or evidence that was not within his knowledge at the time of the original proceedings, nor did he exercise due diligence. The application for review was made after an inordinate delay and was not the proper remedy; the respondent should have appealed the summary judgment. Furthermore, the affidavit in support of the review application was defective as it was commissioned by an advocate without a valid practicing certificate. The consents entered into by the parties and the respondent's repeated defaults further...

Court Disposition

appeal allowed; summary judgment reinstated; review application dismissed; costs to appellant

Orders

  • The appeal is allowed.
  • The orders of the trial magistrate setting aside summary judgment are set aside.