[2017] KEELC 2615 (KLR)
The court held that summary judgment cannot be granted under Order 36 Rule 1 of the Civil Procedure Rules where the defendant has filed a defence. The rationale is that the availability of a defence, regardless of its merits, precludes the use of summary procedure, which is reserved for cases where there is no...
Source-derived case information.
- Citation
- [2017] KEELC 2615 (KLR)
- Parties
- Plaintiff: Wideview Properties Limited; Defendant: Invesco Assurance Company Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 1267 of 2015
- Procedural Posture
- Summary Judgment Application / Ruling on Application for Summary Judgment
- Outcome
- application dismissed with costs to the defendant
- Judges
- AK Bor
- Legal Topics
- Summary Judgment, Defence Filing, Possession of Property, Registered Proprietor Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wideview Properties Limited
Plaintiff
Invesco Assurance Company Limited
Defendant
Procedural Posture
Summary Judgment Application / Ruling on Application for Summary Judgment
Legal Issues
- 1 Whether summary judgment can be granted where the defendant has filed a defence.
- 2 Whether the plaintiff is entitled to recovery and possession of the suit property by summary procedure.
Ratio Decidendi
The court held that summary judgment cannot be granted under Order 36 Rule 1 of the Civil Procedure Rules where the defendant has filed a defence. The rationale is that the availability of a defence, regardless of its merits, precludes the use of summary procedure, which is reserved for cases where there is no defence on record. The court distinguished the authorities cited by the plaintiff, noting that the decision in Joseph Odhiambo Moro v Dirk Jozef Marie-Rose Van Bunder was made under the old Civil Procedure Rules and is not applicable under the current regime. The court found that since the defendant had filed a defence, the plaintiff's application for summary judgment was not...
Court Disposition
application dismissed with costs to the defendant
Orders
- The application dated 16th February 2016 is dismissed with costs to the defendant.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
ELC. CASE NO. 1267 OF 2015
WIDEVIEW PROPERTIES LIMITED……………………...…….….PLAINTIFF
VERSUS
INVESCO ASSURANCE COMPANY LIMITED………...……...DEFENDANT
RULING
The Plaintiff brought the application dated 16th February 2016 under Order 36 Rule 1(1) (b) of the Civil Procedure Rules seeking the following orders:
1. Summary judgment for recovery of Flat Numbers D1 and B44 on L.R. 209/4517 (original number 6863/32) known as Fine Diamond Apartments (“the Suit Property”) as prayed in the plaint; and
2. The Officer Commanding Kilimani Police Station to accompany the Plaintiff and offer security in the taking of possession of the Suit Property upon the grant of prayer 1.
The application is premised on the grounds that the Plaintiff is the registered proprietor of the Suit Property having bought it from the Defendant who failed to hand over possession of the Suit Property to the Plaintiff. It states that the Defendant had failed to file a defence. The application is supported by the Affidavits of Joseph Gitau Mburu. The court notes that a defence was filed on 8th February 2016.
The Defendant argues that the orders sought should not be granted since it has filed a defence.
A plaintiff can only apply for summary judgment against a defendant who has entered appearance but failed to file a defence under Order 36 Rule 1(1) (b). This was affirmed by Munyao Sila J. in James Kipkoech v Hillary Kipkosgei Kiboinet t/a Sweetland Limited [2014] eKLR and Elizabeth Torongei & 5 Others v David Kipngetich Soi [2015] eKLR as well as Fred Ochieng J. in Stargent Enterprises Limited v Cannon Assurance Limited [2017] eKLR. The Defendant relied on these three decisions in support of its position.
The Plaintiff relied on Joseph Odhiambo Moro v Dirk Jozef Marie-Rose Van Bunder [2011] eKLR in which Okwengu J. (as she then was) entered summary judgment for the Defendant on its counterclaim for the recovery of vacant possession of the Suit Property after finding that the Plaintiff had failed to show a credible defence to the counterclaim. It is noteworthy that this decision was given in an application filed in 2008 when the old Civil Procedure Rules applied before the 2010 Rules came into force.
The Defendant has filed a defence, summary judgment cannot be granted pursuant to Order 36 rule 1 of the Civil Procedure Rules. The application dated 16th February 2016 is dismissed with costs to the Defendant.
Delivered in open Court at Nairobi on 29th June 2017.
K. BOR
JUDGE
No appearance for the Plaintiff & Defendant
Present- Mr. V. Owuor- Court Assistant