Civil Procedure Law: Summary Judgement in Kenya

In law, a summary judgment(also judgment as a matter of law) is a judgment entered by acourtfor one party and against another party summarily, i.e., without a fulltrial. Such a judgmentmay be issued on the merits of an entire case, or on discrete issues in that case.Incommon-lawsystems, questions aboutwhat the law actually is in a particular case are decided by judges; in rare casesjury nullificationof the law may act to contravene or complement the instructions or orders of the judge, or otherofficers of the court. A factfinder has to decide what the facts are and apply the law. In traditional common law the factfinder was a jury, but in many jurisdictions the judge now acts as the factfinder as well.

It is the factfinder who decides "what really happened", and it is the judge who applies the law to the facts as determined by the factfinder, whether directly or by giving instructions to the jury.In the absence of an award of summary judgment (or some type of pretrial dismissal), a lawsuit ordinarily proceeds totrial, which is an opportunity for litigants to present evidence in an attemptto persuade the factfinder that they are saying "what really happened", and that, under the applicable law, they should prevail.The necessary steps before a case can get to trial include disclosing documents to the opponent bydiscovery, showing the other side the evidence, often in the form ofwitness statements. This processis lengthy, and can be difficult and costly.A party moving (applying) for summary judgment is attempting to avoid the time and expense of a trial when, in the movingparty's view, the outcome is obvious.

Typically this is stated as, when all the evidence likely to be put forward is such that no reasonable factfinder could disagree with the moving party, summary judgment is appropriate. Sometimes this will occur when there is no real dispute asto what happened, but it also frequently occurs when there is a nominal dispute but the non-moving party cannot produce enough evidence to support its position.

Aparty may also move for summary judgment in order to eliminate the risk of losing at trial, and possibly avoid having to go through discovery (i.e., by moving at the outset of discovery), by demonstratingto the judge, viasworn statementsanddocumentary evidence, that there are no material factual issues remaining to be tried. If there is nothing for the factfinder to decide, then the moving party asks rhetorically,why have a trial?The moving party will also attempt to persuade the court that the undisputed material facts require judgment to be entered in its favor. In many jurisdictions, a party moving for summary judgment takes the risk that, although the judge may agree there are no material issues of fact remaining for trial, the judge may also findthat it is thenon-moving party that is entitled to judgement as a matter of law.

In Kenya legal practice, summary judgment can be awarded by the court before trial, effectively holding that no trial will be necessary.

Summary judgment in the Kenya applies only in civil cases. It does not apply to criminal cases to obtain a pretrial judgment of conviction or acquittal, in part because a criminal defendant has a constitutional right to a jury trial.

From a tactical perspective, there are two basic types of summary-judgment motions. One requires afullevidentiary presentation, and the other requires only amore limited, targeted one.

First, a plaintiff may seek summary judgment on any cause of action, and similarly, a defendant may seek summary judgment in its favor on any affirmative defense. But in either case, the moving party must produce evidence in support ofeach and everyessential element of the claim or defense (as it would have to do at trial). To be successful, this type of summary-judgment motion must be drafted as a written preview of a party's entire case-in-chief (that it would put before the finder of fact at trial) becauseallparts of an entire claim or defense are at issue.

Second, a different and very common tactic is where a defendant seeks summary judgment on a plaintiff's cause of action. The key difference is that in thislatter situation, the defendant need only attackoneessential element of the plaintiff's claim. A finding that the plaintiff cannot proveoneessential element of its claim necessarily renders all other elements immaterial and results in summary judgment for the defendant. So these motions tend to be precisely targeted to the weakest points of the plaintiff's case. It is also possible for a plaintiff to seek summary judgment on a defendant'saffirmative defense, but those types of motions are very rare.