Singh and CO v Meghji and Sons (Civil Appeal No. 62 of 1951)

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

The Court of Appeal allowed the appeal and set aside the summary judgment. Where a defendant's affidavit discloses a triable issue, particularly concerning illegality of the claim, the court should not enter summary judgment under Order 35 but must allow the defendant unconditional leave to defend. The trial judge erred in attempting to try the issue of illegality himself at the summary judgment stage.

Outcome

Summary judgment set aside; defendant granted unconditional leave to defend

Facts

The plaintiff-respondent obtained summary judgment under Order 35 in the Supreme Court of Kenya. The defendant-appellant had filed an affidavit raising the issue of illegality as a defence to the plaintiff's claim. No counter-affidavit was filed by the plaintiff. The learned Judge assumed the general truth of the facts in the defendant's affidavit but proceeded to try the issue of illegality himself and entered summary judgment for the plaintiff. The defendant appealed against this decision.

Issues

1. Whether the learned Judge erred in entering summary judgment under Order 35 when the defendant's affidavit disclosed a triable issue as to illegality.

Orders

• Appeal allowed.
• Summary judgment set aside.
• Application for summary judgment under Order 35 dismissed with costs.
• Defendant-appellant allowed unconditional leave to defend.
• Written statement of defence to be filed within 14 days.
• Costs of the appeal awarded to the appellant.

Rules and key headnotes

Legislation cited (1)

• Order 35

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