Deposit Protection Fund Board v Sunbeam

Supermarket Ltd & 2 others

High Court, at Nairobi January 20, 2004

Ringera J

Civil Case No 3099 of 1996

Civil Practice and Procedure - supporting affidavit – in an application of summary judgments – depositions to be included in such affidavit.

Evidence – parole evidence – such evidence not to be admitted to vary, add to or contradict express contractual terms.

By motion brought under order 35 rule 1 and order 6 rule 13 (1) (b) of the Civil Procedure Rules, the plaintiff prayed for summary judgment as prayed in the plaint and that the counter claim by the defendant be struck out. In opposition the defendants alleged that the application was bad in law for being supported by an incompetent affidavit.

Held:

1. In an application for summary judgment by a liquidator, the liquidation agent, in whose custody pertinent documents are, is a person who can positively verify the pertinent facts and is accordingly a competent deponent of the supporting affidavit within the contemplation of order 31 rule 1 (1).

2. The averment as to the existence of the debt is one condition precedent to the invocation of the summary procedure pursuant to the provision of order 35 rule 1 (1) (a) since the plaintiff must show that the claim is for a liquidated demand. In addition to his, the plaintiff must depose to the non-existence of a defence to such a claim.

3. Failure to strictly comply with the manner of making the application for summary judgment as prescribed in form 3A is not fatal.

4. A motion for summary judgment is not an interlocutory application. It is a final application and accordingly depositions of fact in support of such motion should be based on personal knowledge and not information and/ or belief.

5. The law relating to the admissibility in evidence of separate prior agreements to contradict, add, vary or subtract from written contracts is codified in section 98 of the Evidence Act.

Cases

1. Mwanthi v Imanene [1982] KLR 323; [1982-88] 1 KAR 28

2. Langley Constructions (Brixham) Ltd v Wells [1969] 2 All ER 46; [1969] 1 WLR 503; 113 SJ 203

3. Gupta v Continental Builders Ltd [1978] KLR 83

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order XXXV rule 1 rule 1(2); order VI rule 13 (1) (b) order XVIII rule 3(1)

2. Interpretation and General Provisions Act, (cap 2) section 72

3. Evidence Act (cap 80) section 98

4. Companies Act (cap 486) section 228

5. Companies Act [UK] 1948 section 231