[2013] KEHC 2950 (KLR)
The court found that the applicants failed to properly plead and substantiate the grounds for striking out the defence as required under Order 2 Rule 15 of the Civil Procedure Rules. The supporting affidavit referred to a document that was not relevant to the alleged undertaking by the defendants, and the annexed...
Source-derived case information.
- Citation
- [2013] KEHC 2950 (KLR)
- Parties
- Plaintiff: Abiud Wasike; Plaintiff: Rosemary Wasike; Defendant: Alice Muthee; Defendant: Samuel Muthee
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 2 of 2013
- Procedural Posture
- Civil Suit / Ruling on Application to Strike Out Defence
- Outcome
- application dismissed with costs to the defendants
- Judges
- EO Obaga
- Legal Topics
- Striking Out Pleadings, Rent Arrears, Defence Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abiud Wasike
Plaintiff
Rosemary Wasike
Plaintiff
Alice Muthee
Defendant
Samuel Muthee
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Strike Out Defence
Legal Issues
- 1 Whether the defence filed by the defendants should be struck out under Order 2 Rule 15 (1) (b), (c), and (d) of the Civil Procedure Rules.
- 2 Whether the applicants properly pleaded that the defence was scandalous, frivolous, or an abuse of the court process.
- 3 Whether the supporting affidavit and annexures substantiated the applicants' claims.
Ratio Decidendi
The court found that the applicants failed to properly plead and substantiate the grounds for striking out the defence as required under Order 2 Rule 15 of the Civil Procedure Rules. The supporting affidavit referred to a document that was not relevant to the alleged undertaking by the defendants, and the annexed document related instead to auctioneers and advocate fees. As such, the application was not supported by proper evidence and did not meet the threshold for the drastic remedy of striking out a pleading. The application was therefore dismissed with costs to the defendants.
Court Disposition
application dismissed with costs to the defendants
Orders
- The application to strike out the defence is dismissed with costs to the defendants.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
CIVIL SUIT NO. 2 OF 2013
ABIUD WASIKE ….............................................................…..........}
ROSEMARY WASIKE ........................................................…..........} PLAINTIFFS
VERSUS
ALICE MUTHEE ..........................................................................}
SAMUEL MUTHEE .....................................................................} DEFENDANTS
R U L I N G
The Applicants brought a Notice of Motion seeking orders to strike off the defence filed herein. The Affidavit in support of the application was sworn by their Advocate James Wafula Masai who deponed that on 05/09/2012, the Defendants/Respondents went to his office and signed a document that they will pay rent arrears failing which they were to vacate the premises by 31/12/2012. He further depones that the Respondents did not honour their undertaking instead, they went to their lawyer who filed a sham defence which the Applicants now want to have struck out.
Mr. Wafula deponed in his Affidavit that the said document is annexed to the supporting Affidavit. The Respondents did not file Replying Affidavit or grounds of opposition. Their Advocate Mrs. Arunga contended that as the application was brought under Order 2 Rule 15 (1) (b) (c) and (d) it was mandatory that the Applicants had to indicate whether the defence is scandalous, frivolous or an abuse of the process of the Court. As the Applicants did not do so, she submitted that the application ought to be dismissed.
Striking out a pleading is a remedy which ought to be given sparingly and in the clearest of cases. In the present case, the Applicants contend that the Respondents had undertaken to pay rent arrears failing which they were to vacate the suit premises by 31/12/2012. The Applicants' Advocate who swore the Supporting Affidavit indicated in the Affidavit that the document had been annexed. A look at the annexed document shows that it has nothing to do with what is deponed in the Affidavit. The document annexed relates to agreement as regards auctioneers fees and Advocate fees. It may have been a case of annexing a wrong document but that does not help. The fact remains that the application as it is cannot be sustained. The same is hereby dismissed with costs to the Defendant/Respondents.
It is so ordered.
Dated, signed and delivered in Open Court on this 24th day of June, 2013.
E. OBAGA
JUDGE
In the presence of Mr. J. M. Wafula for Maurine Nafula for Applicant: Present. Mr. Nyamu for M/S Arunga for Respondent: Present.
Court Clerk: Joan.
E. OBAGA
JUDGE
24/06/2013