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Legal Framework for Summary Judgements

The document outlines the legal framework for summary judgments under the Civil Procedure Act, specifically Section 81(2)(f) and Order 36 of the Civil Procedure Rules, which restricts summary judgments to cases involving liquidated demands or recovery of land by landlords from tenants. It discusses a case where summary judgment was granted but later contested on appeal, emphasizing that the scope of summary judgments is limited and cannot extend beyond the specified circumstances. Additionally, it details procedural requirements for applying for summary judgments, including the need for an affidavit and sufficient notice to the defendant.

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31 views

Legal Framework for Summary Judgements

The document outlines the legal framework for summary judgments under the Civil Procedure Act, specifically Section 81(2)(f) and Order 36 of the Civil Procedure Rules, which restricts summary judgments to cases involving liquidated demands or recovery of land by landlords from tenants. It discusses a case where summary judgment was granted but later contested on appeal, emphasizing that the scope of summary judgments is limited and cannot extend beyond the specified circumstances. Additionally, it details procedural requirements for applying for summary judgments, including the need for an affidavit and sufficient notice to the defendant.

Uploaded by

jessewaweru018
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as DOCX, PDF, TXT or read online on Scribd
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Legal Framework for Summary Judgements

Section 81(2)(f) of the Civil Procedure Act provides that summary judgements can only be
sought in the following circumstances;

‘in suits in which the plaintiff seeks only to recover a debt or liquidated demand in money
payable by the defendant, with or without interest, arising on a contract express or implied; or
on an enactment where the sum sought to be recovered is a fixed sum of money or in the
nature of a debt other than a penalty; or on a guarantee, where the claim against the principal
is in respect of a debt or a liquidated demand only or on a trust; or

in suits for the recovery of immovable property, with or without a claim for rent or mesne
profits, by a landlord against a tenant whose term has expired or has been duly determined for
non payment of rent, or against persons claiming under such tenant;’1

Rule 1 of Order 36 of the Civil Procedure Rules further emphasizes the situations under
which a summary judgement can be sought to be the ones stated above. The scope of the law
has been limited to the two; that the action should be a liquidated demand or a recovery of
land from a tenant by a landlord. Anything beyond the two requirements, is not recognised
within the definition of summary judgements.

In Olympic Escort International Co. Ltd, Olympic Fruit Processors Ltd and Keziah Wanjiku
Ng’ang’a v Parminder Singh Sandhu and Nanak Enterprises Works Ltd, 2 Nanak Enterprises
had rented a go-down from Olympic Escort to carry out garage business. During the tenancy,
another company, Olympic Fruit wrote to Nanak perpetuating that the property in which the
go-down was, was on sale. To which Nanak responded by buying the property from Olympic
Fruit paying the cheques to Olympic Fruit and Keziah Wanjiku, the wife to the director of
Olympic Escort and also a director of both companies. In a statement of defence, Olympic
Escort declined ever selling the property, claiming that they were not privy to ant contract of
sale. With none of the respondents responding to the defence, Nanak sought a prayer for
summary judgement as well as the striking gout of the written statement of defence. The
summary judgment was granted by the learned Judge, Rawal, J.

Upon appeal, the summary judgement was in contention. The appellate court emphasised the
scope of Order 35, Rule 1 (now Order 36, Rule 1) stating that anything that is in addition to
the liquidated demand or recovery of land by a landlord from a tenant was not in the scope of
1
Civil Procedure Act No. 3 of 1994.
2
(2009) KECA 258 (KLR).
the rule and could not warrant a summary judgement. The appellate court held that neither of
the parties was litigating as ‘landlord’ or ‘tenant’ and the cause of action was specific, an
allegation of a sale of property with injunction and specific performance orders being sought.
With the rule being limited to the recovery of immoveable property, summary judgement
could not be exercised. The Court of Appeal struck out the notice of motion

Rule 2 provides that the application seeking for the order of summary judgement must be
supported by an affidavit swearing in the affirmative the causes in action as well as the
amount claimed.3

Rule 3 provides that the applicant has to give the defendant sufficient notice of not less than
seven days in regard to the application for the summary judgement. 4 This is to ensure that the
defendant is also wiling to pursue the summary judgement in order to prevent further delays
in court. In other cases where the defendant wishes to continue with the case in the ordinary
form and the matter proves to be one of public interest as was held in Ibrahim Abdel Rahman
v Hussein Ibrahim,5 the case should follow the normal procedure, be heard in its entirety and
be brought to an end.

3
Civil Procedure Rules.
4
Ibid.
5
Civil Suit No.1 of 1973.

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