[2023] KEHC 23709 (KLR)

Stephens Kithi Ngombo t/a Steve Kithi & Co. Advocates v County Government of Kilifi (Civil Suit E007 of 2022) [2023] KEHC 23709 (KLR) (18 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23709 (KLR)

Republic of Kenya

In the High Court at Malindi

Civil Suit E007 of 2022

SM Githinji, J

October 18, 2023

Between

Stephens Kithi Ngombo t/a Steve Kithi & Co. Advocates

Plaintiff

and

County Government of Kilifi

Defendant

Ruling

1. This Ruling is in respect of an application by the Plaintiff/Applicant dated 30th September, 2022 filed under certificate of urgency seeking the following orders;1. Spent.2. That this Honourable Court be pleased to enter Summary Judgment in favour of the Plaintiff/ Applicant against the Defendant/ Respondent for the sum of Kshs. 1,010,600,700/- as prayed for in Prayer 1 of the Plaint plus interest thereon at Court’s rates from 20th February, 2014 until payment in full.3. That the costs be awarded to the Plaintiff/ Applicant.

2. The application was supported by the grounds on the face of the application as well as the affidavit sworn by Stephen Kithi Ngombo on the same day. He deposed that despite serving the Defendant/ Respondent with a fee note dated 14th September, 2021 the Defendant/ Respondent has neither raised any queries thereon nor settled the same. He contended that the failure of the Defendant/ Respondent to raise any queries to the Fee Note shows that the Defendant has agreed to the fees hence rendering the suit necessary. He further asserted that he has granted the Defendant/ Respondent ample grace period of 9 years but despite the passage of all this time, the Defendant/ Respondent has not made any and/or any sufficient response on the question of payment of fees thereby rendering the suit necessary.

3. In response, the respondent filed a Replying Affidavit sworn by Martin Mangi Mwaro on the 13th day of March, 2023. He stated that indeed the Plaintiff presented to his office the fee note and that the Office of the County Attorney has a valid defence on record which raises very serious legal as well as factual issues which the Respondent is entitled to unconditional leave to defend at trial. That the Plaintiff’s claim is for remuneration allegedly earned pursuant to instructions given to him to draw an agreement between the respondent and Rain Drops Limited which agreement was signed on 20th February, 2014. That further, on experiencing difficulties in the implementation of the agreement, the plaintiff was engaged by the Defendant with instructions to draw an amended agreement, a task he concluded and the agreement signed on 28th March, 2014.

4. He asserted that upon perusal of the records by the plaintiff, he has not seen anything showing that the Respondent continued to engage the Plaintiff on the implementation of the agreement dated 20th April, 2014. According to him, any claim for fees on this contract had to be made within three years of the date of execution of the said agreement or on the date the task given to draw the agreement on behalf of the respondent was concluded.

5. The application was canvassed by way of written submission with the Plaintiff/ Applicant filing his on the 13th day of March, 2023 and the Defendant/ Respondent filing its submissions on the 12th day of April, 2023. This court has perused the submissions by both counsels.

Analysis and Determination 6. I have considered the application, the responses, the bundles of documents by both parties as well as the written submissions. In my view, the issues for determination are whether the Plaintiff/ Applicant satisfied the rule governing principles under Order 36 of the Civil Procedure Rules and whether the underlying facts in the Statement of Defence entitled the Respondent to a trial on the merits.

7. Order 36 of the Civil Procedure Rules stipulates as follows: -In all suits where a plaintiff seeks judgment for;-a.a liquidated demand with or without interest; orb.the recovery of land, with or without a claim for rent or mesne profits, by a landlord from a tenant whose term has expired or been determined by notice to quit or been forfeited for non-payment of rent or for breach of covenant, or against persons claiming under such tenant or against a trespasser, where the defendant has appeared but not filed a defence the plaintiff may apply for judgment for the amount claimed, or part thereof, and interest, or for recovery of the land and rent or mesne profits.

8. Ideally this provision is applicable where a debt is admitted thereby entitling the claimant to obtain judgment expeditiously so as to save on the costs and time that could have been spent in pursuing a full hearing. This is the position that was taken in ICDCvs Daber Enterprises Ltd (2000) eKLR:“The purpose of the proceedings in an application for summary judgment is to enable the plaintiff to obtain a quick judgment where there is plainly no defence to the claims. To justify summary judgment, the matter must be plain and obvious and where it is not plain and obvious, a party to a civil litigation is not to be deprived of his right to have his case tried by a proper trial where if necessary, there has been discovery and oral evidence subject to cross examination.”

9. In an application as the one before this court, the Plaintiff/Applicant has the initial burden of showing that the Defendant/Respondent defence has no real prospect of succeeding in controverting the liquidated claim pleaded. In essence, those facts as averred in the affidavit must be undisputed and there must be no plausible ground for the Defendant to dispute them. That contrary to the Defendant’s statement of defence, annexures and statements, there would be no legitimate evidence likely to affect the trial Court assessment of the facts to dismiss the Statement of Defence and entitle an entry for Summary Judgment.

10. In this case, the applicant contends that despite serving the Defendant/ Respondent with a fee note dated 14th September, 2021 the Defendant/ Respondent has neither raised any queries thereon nor settled the same. Further, that there is an irrebuttable presumption of law that the failure of the Defendant/ Respondent to raise any queries to the fee Note; the Defendant/ Respondent has agreed to the fees hence rendering the suit necessary.

11. Far from the truth, the Respondent is of the view that any claim for fees on the contract dated 20th April, 2014 had to be made within three years of the date of execution of the said agreement or on the date the task given to draw the agreement on behalf of the respondent was concluded. In my view and going by what has been presented before this court, in deciding an application for Summary judgment, the Court is concerned only with the threshold determination of the pleaded liquidated claim and not with the merits of the underlying claim. In this case, the debt as has been alleged by the plaintiff/ applicant is denied.

12. I seek guidance from the case of Misort Africa Ltdvs Ps National Treasury and Planning & Another(2020) eKLR, the court had this to say: The key consideration in determining an application to strike out a Defense is the consideration as to whether the said Defense raises triable issues. In the case of Job Kwach –vs- Nation Media Group Ltd it was held as follows: -“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 raised no bonafide 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 to liable 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.”

13. The bottom line is that summary judgment ought only be entered in very clear cut cases; that are colloquially known as “open and shut” cases. In my view this is not such a case. The Defence by the Respondent raises triable issues and merits a full hearing noting the amounts that are being claimed by the Plaintiff/Applicant are colossal.

14. In the end, I find no merit in this application. The Notice of Motion dated 30th September 2022 is hereby dismissed in its entirety. Costs be in the cause.

RULING READ, SIGNED AND DELIVERED VIRTUALLY AT MALINDI THIS 18TH DAY OF OCTOBER, 2023. ...................................S.M. GITHINJIJUDGEIn the Presence of; -Mr Ngongo for the Applicant/PlaintiffMr Ole Kina for the Defendant/Respondent