Singh and CO v Meghji and Sons (Civil Appeal No. 62 of 1951) [1952] EACA 33 (1 January 1952)

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL (President), SIR NEWNHAM WORLEY (Vice-President) and de Lestang, J. (Kenya)

KIRAT SINGH & CO., Appellants (Original Defendants)

PUNJA MEGHII & SONS, Respondents (Original Plaintiffs) Civil Appeal No. 62 of 1951

(Appeal from decision of H. M. Supreme Court of Kenya, Connell, J.) Practice--Civil Procedure-Order 35, Summary judgment-Triable issue.

Judgment set aside and Order substituted allowing defendant-appellant unconditional leave to defend.

Mandavia for appellant.

Modi for respondent.

ORDER (26-3-1952).—We are of the opinion that this appeal must be allowed. It is an appeal against a decision by the learned Judge in the Supreme Court of Kenya in which he entered a summary judgment under Order 35. At the time of the hearing of the plaintiff's application the learned Judge had before him. an affidavit filed by the defendant which in our opinion clearly disclosed a triable issue, the issue being whether the plaintiff could enforce his claim on account of illegality. No counter-affidavit has been filed by the plaintiff and the learned Judge in his judgment has assumed the general truth of the facts set out in the defendant's affidavit. He then went on in effect himself to try the issue as to illegality. In this he erred. If the issue as to illegality had not been an arguable one it might be that the learned Judge could have disregarded it, but that is clearly not so in the present case and the very terms of the judgment show it not to be so.

We therefore set aside the judgment and substitute the following order: —

The application made by the plaintiff-respondent for summary judgment under Order 35 be dismissed with costs and that the defendantappellant be allowed unconditional leave to defend. A written statement of defence to be filed within 14 days. The appellant will also be entitled to the costs of this appeal.