A defendant owes a fixed, documented sum and files a defence that says little. Does the creditor still have to wait for a full trial? The Civil Procedure Rules 2010 provide a summary procedure for liquidated demands, and it remains one of the more useful tools for a creditor with a clear paper trail. This guide explains when the procedure is available, what the court looks for, the steps and documents involved, and its limits.
Quick answer: summary judgment can be sought where the claim is for a liquidated sum and the defendant has no bona fide defence or triable issue to raise. The application is made by notice of motion supported by an affidavit, usually after the defendant has entered appearance. If the defendant shows a genuine triable issue, the claim proceeds to trial in the ordinary way.
What counts as a liquidated demand
A claim is liquidated when the sum is fixed or can be calculated from the documents. Common examples are a dishonoured cheque, an agreed loan instalment, invoices calculated at agreed rates, a written acknowledgement of debt and a balance confirmed by reconciled statements. A claim for general damages, such as compensation for breach with no fixed measure, is not a liquidated demand, although a fixed contractual sum within the same claim may be.
The distinction matters because the summary procedure is designed for claims that do not need a trial to establish the amount. If the amount itself has to be assessed on evidence, the ordinary trial route is more likely to be appropriate.
The legal basis and the test
The Civil Procedure Act (Cap 21) and the Civil Procedure Rules 2010 set out the procedure. In substance, the plaintiff applies on the basis that the defendant has no defence to the claim, or that the defence is not bona fide and discloses no triable issue. The defendant must then respond with evidence rather than a bare denial.
The court’s approach is practical. It asks whether there is a genuine dispute of fact or law that requires a trial, not whether the defence will ultimately succeed. A defence that raises a real question about the existence of the debt, the amount, a set-off or the parties’ agreement will usually be enough to send the matter to trial.
The procedural steps
The application is ordinarily made after the defendant has entered appearance. In practice the sequence runs as follows:
- Confirm that the claim is liquidated and supported by documents.
- Prepare a notice of motion, a supporting affidavit and exhibits that prove the sum.
- File and serve the application, and confirm the service position.
- Serve the defendant’s replying affidavit if one is filed.
- Attend the hearing, where the court may enter judgment, grant leave to defend, or direct a trial.
The affidavit carries the case. It should identify the agreement, the debt, the computation, the demand and the absence of a genuine dispute, and it should exhibit the documents that prove each point.
What the defendant must show
The defendant does not have to prove the defence conclusively. The question is whether there is a triable issue. An assertion without evidence is vulnerable, so the replying affidavit should identify the facts disputed, the documents relied on and why the issue cannot be resolved on the papers.
Common triable issues include a genuine dispute about the contract terms, a set-off or counterclaim arising from the same transaction, allegations of fraud or misrepresentation, and uncertainty about the amount claimed. Where a connected counterclaim is raised, the court may prefer to send the whole dispute to trial rather than enter judgment on part of it.
Documents that decide the application
| Document | Why it matters |
|---|---|
| Contract or order terms | Establishes the rate, the due date and the agreed quantity |
| Invoices and delivery notes | Prove supply and the amount charged |
| Statements or reconciliation | Show the balance due and payments already received |
| Written acknowledgement of debt | Limits the scope for a genuine dispute |
| Demand letter and correspondence | Show default and the notice given |
| Dishonoured cheque and return memo | Evidence the debt and the failure to pay |
Keep a short chronology and a computation sheet. A court should be able to follow the sum from the contract to the balance without reconstructing the arithmetic, and a computation that is transparent is harder to attack than a round figure.
When summary judgment is refused
If the application fails, the court usually gives the defendant leave to defend, sometimes on conditions such as a deposit or security. The claim then proceeds as an ordinary suit. A failed application adds cost and delay, which is why the decision should be made on the file before filing rather than on the defendant’s reputation.
The procedure is also unsuitable where the claim depends on oral evidence, where fraud or misconduct requires credibility findings, or where the amount is genuinely disputed. In those cases an ordinary suit, or a negotiated settlement, is usually the better route.
Timing, cost and when to get advice
A summary application is usually decided on the papers or at a short hearing, so it can shorten the path to judgment compared with a full trial. It is not a shortcut: the court’s list, service and the defendant’s response all affect the date, and a contested application can take time of its own.
On cost, the application attracts court filing fees and advocate’s fees in addition to those for the suit, although it may avoid trial costs where judgment is entered. Fees are regulated, so ask for a written estimate. Summary judgment usually makes sense where the documents are strong, the defence has no substance and the sum justifies the application. The firm’s commercial litigation practice in Nairobi advises on liquidated claims and enforcement, including execution and garnishee proceedings and limitation periods for commercial claims.
Primary sources
- Civil Procedure Act (Cap 21), Kenya Law.
- Civil Procedure Rules 2010, Kenya Law.
- The Judiciary of Kenya, for court services and practice directions.
This article is general information, not legal advice.