Riaga Samuel Cornelius Omolo, Abdulrasul Ahmed Lakha, Moijo Matayia Ole Keiwua
Lucy Momanyi t/a L.N. Momanyi & Company v Nurein M.A. Hatimy & Khadija Salim
Lucy Momanyi T/A L.N. Momanyi & Company v Nurein M.A. Hatimy & another  eKLR
Lucy Momanyi t/a L.N. Momanyi & Company v Nurein M.A. Hatimy & another
Court of Appeal, at Mombasa August 8, 2003
Omolo, Lakha & Keiwua JJ A
Civil Appeal No 139 of 2002
(An appeal from a Ruling and Preliminary Decree of the High Court at
Mombasa (Ang’awa J) dated 14th October, 1997 in HCCC No 46 of 1997)
Advocate - negligence of advocate - where allegation of negligence and misrepresentation is made against an advocate - requirement to grant unconditional leave to defend - where the allegation precedes and is meant to found a claim for a new sum - where such new sum may not be sustainable in the plaint - manner in which the allegations must be proved.
Civil Practice and Procedure - admissions - applying for judgment on admission - nature of the admission - principle as to simplicity in meaning - nature of the principle - whether judgment on admission can be entered for recovery of that which is neither sued nor prayed for in the plaint - order XII of the Civil Procedure Rules (cap 21 Sub Leg).
Civil Practice and Procedure - summary judgment - application for summary judgment - where triable issues are disclosed in the application - whether the Court may exercise its discretion to award summary judgment - summary judgment in mixed claims - when summary judgment can be entered with regard to such claims.
The appellant had unsuccessfully resisted a suit in which the respondents claimed that she had misrepresented to them that the suit premises was free from any encumbrances and available for immediate transfer and registration. The respondents were alleged to have been induced by such misrepresentation to part with the purchase price of the suit premises and Kshs 60,000/= being the agreed advocates fees. The appellant was also alleged to be liable to the respondents for general damages for anxiety caused to the respondents by unethical behavior consisting of gross negligence as the respondent’s advocate.
In her defence the appellant disclosed that the sum the respondents paid as her fees was Kshs 80,000/= (admitted sum) as opposed to the sum of Kshs 60,000/= claimed in the plaint. She denied allegations that she had been negligent in her conduct or that she had made any misrepresentation.
The appellant further contended that the defence she filed on record raised serious triable issues which could not be tried on affidavit evidence adduced by the respondents. She also averred that it would be a grave injustice to enter summary judgment against her where the allegation was that of negligence, due to the deposit of an amount that had not been ascertained.
1. Summary judgment or judgment on admission should not be entered for recovery of that which is neither sued nor prayed for in the plaint. A plaint has to be amended to substitute the admitted sum for that sued for.
2. Where allegations of negligence and misrepresentation are made against an advocate, leave to defend should be granted unconditionally if the defence is not frivolous and discloses serious triable issues.
3. Where allegations of negligence and mispresentation precede and are meant to found a claim for the refund of a new sum which might not be sustainable in the plaint and without proof of the allegations, those allegations must be proved through oral as opposed to affidavit evidence.
4. For order XII of the Civil Procedure Rules to apply there must be admission of facts, which entitle the plaintiff to apply for judgment without waiting for determination of any other question between the parties.
5. Admissions have to be plain and obvious. The admission must have no room for doubt that the parties passed out of the stage of negotiations onto a definite contract.
6. When it comes to admission, the principle as to simplicity in meaning is the same in contract as it is in tort.
7. If triable issues have been disclosed in an application for summary judgment, there is no discretion to be exercised. The only thing left for the Court to do is to grant unconditional leave to defend where the defendant is able to raise a prima facie triable issue.
8. Summary judgment can only be entered in mixed claims where one of those claims is liquidated and can be dealt with separately without violating the other claims.
1. Choitram v Nazari  KLR 327
2. Osodo v Barclays Bank International Ltd  KLR 30
3. Trust Bank Limited & Michael Muhindi v Investec Bank Ltd Civil Appeals Nos 258 & 315 of 1999
Civil Procedure Rules (cap 21 Sub Leg) order XII rule 6; order XXXV rule 1
Mr Mabeya for the Appellant.
Mr Master for the Respondent.