Clovis Karatunga v Edrisa Nyakairu (Civil Suit No. DR. MFP 16 90)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

Held that the defendant raised genuine triable issues as to whether the plaintiff breached the sale agreement by failing to pay the balance of the purchase price and whether the defendant's seizure and resale of the vehicle was justified under the agreement. The defences raised were not sham and went beyond mere suspicion. Unconditional leave to defend granted.

Outcome

Defendant granted unconditional leave to defend; matter to proceed to full hearing

Facts

On 9 January 1990, the defendant agreed to sell motor vehicle registration No. UWQ 890 to the plaintiff for Shs. 1,150,000. The registration book was in the name of Tom Rwomushana. The plaintiff paid Shs. 610,000 on the date of agreement, Shs. 100,000 on 2 February 1990, and Shs. 100,000 on 22 March 1990, totalling Shs. 810,000. Having paid over half the purchase price, the plaintiff refused to pay further until the defendant showed evidence of ownership. When the defendant failed to do so, the plaintiff demanded return of the Shs. 810,000 already paid and filed suit under summary procedure. The defendant applied for leave to defend, averring that the plaintiff failed to pay the balance by 20 February 1990 as agreed, that he seized the vehicle on 14 June 1990, and resold it to Paulo Asaba on 5 July 1990 to recover the balance under clause 4(b) of the agreement, with the plaintiff's consent.

Issues

1. Whether the defendant/applicant raised triable issues sufficient to warrant unconditional leave to defend the summary suit.
2. Whether the plaintiff's failure to pay the balance of the purchase price entitled the defendant to seize and resell the vehicle.
3. Whether the plaintiff was entitled to recover money paid where the defendant allegedly lacked title to the vehicle sold.

Orders

• Application granted.
• Applicant/defendant granted unconditional leave to appear and defend the suit.
• Applicant/defendant to file written statement of defence within 21 days from the date of delivery of this ruling.
• Costs of this application provided for.

Rules and key headnotes

Legislation cited (2)

• Civil Procedure Rules Order 33 r.3
• Civil Procedure Rules Order 48 r.1

Cases cited (3)

• Kundanlal Restaurant v Devish & Co [1952] 19 EACA 77
• Souza Figuerido & Co Ltd v Moorings Hotel Ltd (1959) EA 425
• Camille v Merali (1966) EA 414

The original judgment as reported. Read the original PDF before relying on any passage.