[2022] KEHC 17067 (KLR)

Ahmed & 2 others v Bank of India (Civil Suit 63 of 2017) [2022] KEHC 17067 (KLR) (8 July 2022) (Ruling)

Neutral citation: [2022] KEHC 17067 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Suit 63 of 2017

MN Mwangi, J

July 8, 2022

Between

Omar Shariff Ahmed

1st Plaintiff

Hussein Ahmed Hussein

2nd Plaintiff

Mombasa Housewares Limited

3rd Plaintiff

and

Bank Of India

Defendant

Ruling

1. The application before me is a Notice of Motion dated November 22, 2019 brought under the provisions of Sections 1A, 1B and 3A of the Civil Procedure Act, Cap 21 Laws of Kenya, Order 2 Rules 15(1) (a), (b), (c) and (d) of the Civil Procedure Rules and other applicable provisions of the law. The defendant seeks the following orders-1. That this Honourable Court be pleased to order the plaintiff’s plaint to be struck out on the grounds that:a.It discloses no reasonable cause of action;b.It is scandalous, frivolous or vexatious;c.It is an abuse of the Court process; andd.It may prejudice, embarrasses and delays the fair trial of this action.1. That this Honourable Court be subsequently pleased to dismiss this suit; and2. That the costs of this application and the suit be granted to the defendant.

2. The application is premised on the grounds on the face of it and is supported by an affidavit sworn on November 22, 2019 by Manoj Kumar, the defendant’s Branch Manager. In opposition to the said application, the plaintiffs filed a replying affidavit sworn on October 19, 2020 by Omar Shariff Ahmed, the 1st plaintiff and a director of the 3rd plaintiff herein.

3. The application herein was canvassed by way of written submissions. The defendant’s submissions were filed on November 10, 2020 by the law firm of N A Ali & Company Advocates while the plaintiffs’ submissions were filed on November 23, 2020 by the law firm of Mogaka Omwenga & Mabeya Advocates.

4. Mr. Hassan, learned Counsel for the defendant submitted that the plaintiffs filed the suit herein seeking orders of injunction to restrain the defendant from proceeding to exercise its statutory power of sale on account of default of payment of financial facilities by the 3rd plaintiff. He further submitted that on July 19, 2017, this Court made several orders among them being that the resolution of the dispute on how much debt is outstanding shall be determined by an Auditor to be appointed by the parties within seven days. That thereafter, the Auditor shall compile and file a report in Court within 60 days from July 19, 2017 and the findings of the Audit Report shall be admitted by the Court as its finding on the dispute.

5. He submitted that since the parties could not settle on a joint Auditor, the Court on February 13, 2018 appointed Interest Rates Advisory Center (IRAC) to be the independent Auditor to conduct the ordered audit. Mr. Hassan contended that a report dated April 18, 2018 was subsequently prepared and filed by IRAC in Court, but on October 18, 2018 the plaintiffs requested to have two other accounts that they held with the defendant audited.

6. It was submitted by Mr. Hassan that the Court acceded to the said request and ordered IRAC to conduct a comprehensive audit of all three accounts and prepare a report which shall be a conclusive resolution as to the interest payable. A report dated December 13, 2018 was filed by the Auditor which showed that in respect to one account, the outstanding amount is Kshs 646,074. 56 whereas in the other account, the outstanding amount is Kshs 4,674,473. 12.

7. Mr. Hassan submitted that on May 6, 2019, the plaintiffs admitted that they owed the defendant Kshs 3,321,097. 20 but disagreed with other aspects of the audits which were conducted. That the Court therefore entered judgment on admission for the amount of Kshs 3,321,097. 20 pending adjudication of other outstanding issues to be presented to the Court by the plaintiffs. That the issues have never been presented to date, despite the plaintiffs having been given several opportunities to do so.

8. He further submitted that the defendant’s position is that the audit exercise disposed of the dispute in the matter herein. He relied on the provisions of Order 2 Rule 15(1) of the Civil Procedure Rules and submitted that the plaintiffs’ pleadings no longer disclose any reasonable cause of action since there is nothing left for the Court to determine. He further submitted that by the plaintiffs holding on to the existence of the suit herein, by alleging that there are issues for determination yet there are none, amounts to an abuse of the Court process. He relied on the case of Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 others [2009] eKLR, where the Court held that a party should have his day in Court only when there is something to hear and that no party should have a right to squander judicial time, as such time is the only resource the Courts have at their disposal and its management does positively or adversely affect the entire system of the administration of justice.

9. Mr Omwenga, learned Counsel for the plaintiffs in citing the case of DT Dobie & Company (Kenya) Ltd v Muchina [1982] KLR 1, submitted that the power to strike out pleadings is a discretionary power that is granted to Courts and should only be exercised in the interest of justice. He further submitted that a look at the defendant’s application indicates that the defendant is yet to fulfillthe threshold provided under Order 2 Rule 15 of the Civil Procedure Rules.

10. He referred to the case of Joseph Mwaura Njoroge v Madison Insurance Co. Ltd [2015] eKLR where the Court cited the case of Mpaka Road Development Ltd v Kana [2004] 1 EA 124, where it was held that a pleading is frivolous if it lacks seriousness and if it is not serious, then it would be unsustainable in Court. That the Court also stated that a pleading would be vexatious if it annoys or tends to annoy. It was also held that it would obviously annoy or tend to annoy, if it was not serious or it contained scandalous matters which are irrelevant to the action or defence. The said Court stated that in short, a scandalous or frivolous pleading is ipso facto vexatious.

11. Mr Omwenga submitted that the plaintiffs’ titles to Mombasa/Block/XX/126 and 127 are still in possession of the defendant despite the fact that they were acquired through fraud and misrepresentation. Therefore, the plaintiffs’ right to property is still in jeopardy hence the Court is required to adjudicate on the same. He further submitted that the plaintiffs’ suit is not an abuse of the Court process. He relied on the case of Beinosi v Wiyley 1973 (SA 721 [SCA] at page 734F-G where the Court considered what constitutes abuse of the Court process, a decision which was fully reiterated and adopted by the Court of Appeal in Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 others(supra).

12. He contended that the defendant was reluctant, unwilling and had refused to accept the plaintiffs’ proposal towards settlement of the admitted amount. Mr Omwenga submitted that a proposal of monthly instalments of Kshs 100,000. 00 was rejected which prompted the plaintiffs to find an alternative mode of settling the same. He stated that Dubai Islamic Bank of Kenya was willing to settle the sum if copies of the titles were supplied to them but the said proposal was also rejected.

13. He submitted that the right to be heard is a constitutional right provided under Article 50 of the Constitution of Kenya, thus it would be in the interest of all parties to have this suit heard on merit. He stated that natural justice and the provisions of Article 27(1) of the Constitution call for parties to be accorded the right to a fair trial. He contended that subjecting a litigant to striking out of pleadings negates this freedom.

Analysis And Determination. 14. I have considered the application filed herein, the affidavit filed in support of it, the replying affidavit as well as the written submissions by Counsel for the parties. The issue that arises for determination is whether the application herein is merited.

15. The defendant in its supporting affidavit deposed that the parties herein by consensus took the common trajectory that in order to resolve the dispute as to how much debt was truly outstanding in respect of the financial facilities issued to the 3rd plaintiff by the defendant, an audit be conducted by an independent Auditor and that the findings of the audit shall be binding on all parties.

16. It was stated by the defendant that on February 13, 2018, the Court appointed an impartial auditing institution namely IRAC as the independent Auditor to conduct the ordered audit, and that the parties proceeded to jointly pay for the audit. The defendant contended that pursuant to an order made on October 18, 2018, the Auditor conducted a comprehensive audit on the plaintiffs’ three accounts held by the defendant and thereafter, a comprehensive report was filed on December 13, 2018.

17. The defendant further stated that from the findings of the report dated December 13, 2018, it was determined that the 3rd plaintiff was indebted to the defendant contrary to the plaintiffs’ assertions through the subject suit that the 3rd plaintiff does not owe the defendant any amount, as the loan advanced had already been repaid. It contended that the audits conducted were binding on the parties pursuant to the consensus to conduct the same by the parties, thus the plaintiffs are not entitled to impugn them on any grounds.

18. The defendant deposed that the connotation of the findings of the audit reports is that the plaintiffs are indebted to the defendant bank and default to pay the loan entitles the defendant to exercise its remedy of statutory power for sale of properties secured by the charge, for payment of the credit facilities advanced to the 3rd plaintiff. It stated that the parties herein and the Courts narrowed the issues in dispute by conducting the said audits, therefore, the issues have effectively been determined and there is nothing else left for adjudication and/or no outstanding cause of action.

19. It was stated by the defendant that the plaintiffs have been granted a plethora of opportunities to settle the debt owed but they have provided unacceptable proposals to settle to an extent that an out of Court settlement is elusive.

20. The plaintiffs in their replying affidavit deposed that the defendant has made it extremely difficult to settle the admitted sum of Kshs 3,321,097. 20 hence it is estopped from making allegations of non-compliance with Court orders. They further deposed that from the audit reports, the defendant was claiming amounts which were not in the statutory notices given, thus the prayers by the plaintiff are still valid and the matter ought to proceed to full trial for the remainder of the issues raised in the plaintiff’s plaint.

21. It was stated by the plaintiffs that the audit reports were only to conclude resolution of the issue of interest and not any other issues, hence issues raised in the plaint ought to be determined at a full trial of the matter. They contended that the interest of justice requires that the same should not be struck out or dismissed till the parties give evidence to verify their allegations which ought to be tested through oral testimonies and cross-examination.

Whether the application herein is merited. 22. Order 2 Rule 15(1) of Civil Procedure Rules, 2010 provides as hereunder-“At any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that—a.it discloses no reasonable cause of action or defence in law; orb.it is scandalous, frivolous or vexatious; orc.it may prejudice, embarrass or delay the fair trial of the action; ord.it is otherwise an abuse of the process of the court, and may order the suit to be stayed or dismissed or judgment to be entered accordingly, as the case may be.(2)No evidence shall be admissible on an application under sub rule (1)(a) but the application shall state concisely the grounds on which it is made.(3)So far as applicable this rule shall apply to an originating summons and a petition.” (emphasis added).

23. It follows then that the power to strike out a pleading is discretionary. Striking out of a suit and/or pleading is however a draconian and drastic measure which should be resorted to only sparingly and as the very last resort. It is only where a pleading cannot be salvaged by an amendment that a Court will utilize this procedure. That was the holding of the Court in Geminia Insurance Co Limited vs Kennedy Otieno Onyango[2005] eKLR where Musinga J (as he then was) held as follows: -“It is trite law that striking out pleadings is a draconian step which ought to be employed in the clearest of cases and particularly where it is evident that the suit is beyond redemption.”

24. In Yaya Towers Limited v Trade Bank Limited (In Liquidation) (Civil Appeal No. 35 of 2000) the Court of Appeal made the following observation:“A plaintiff (defendant) is entitled to pursue a claim in our courts however implausible and however improbable his chances of success. Unless the defendant (plaintiff) can demonstrate shortly and conclusively that the plaintiff’s claim is bound to fail or is otherwise objectionable as an abuse of the process of the Court, it must be allowed to proceed to trial...It cannot be doubted that the Court has inherent jurisdiction to dismiss that, which is an abuse of the process of the Court. It is a jurisdiction, which ought to be sparingly exercised and only in exceptional cases, and its exercise would not be justified merely because the story told in the pleadings was highly improbable, and one, which was difficult to believe, could be proved.

25. Similarly, the Court of Appeal in Crescent Construction Limited vs Kenya Commmercial Bank Limited [2019] eKLR, stated as follows:“However, one thing remains clear, and that is that the power to strike out a pleading is a discretionary one. It is to be exercised with the greatest care and caution. This comes from the realization that the rules of natural justice require that the court must not drive away any litigant however weak his case may be from the seat of justice. This is a time-honored legal principle. At the same time, it is unfair to drag a person to the seat of justice when the case purportedly brought against him is a non-starter.”

26. I have gone through the Court record and noted that parties consented to appointing an Auditor to audit the 3rd plaintiff’s accounts held by the defendant so as to resolve how much is owed to the defendant. I also note that it was a term of the consent order that the findings of the audit were to be adopted by this Court as its finding in the dispute. The defendant avers that by virtue of the consent order dated July 19, 2017, parties herein narrowed down the issues in dispute, hence the results of the audit exercise resolved the fact in issue as to whether there were any outstanding amounts or if interest was payable. In its view, nothing else was left for adjudication.

27. The plaintiffs on the other hand contend that as much as the issue on whether there were any outstanding amounts or interest was payable was partly resolved by the audits conducted and its own admission made on May 6, 2019. They contend that their titles to Mombasa/Block/XX/126 and 127 which were acquired through fraud and misrepresentation are still in possession of the defendant. Further, that their right to property is in jeopardy and the Court is required to adjudicate on the same.

28. I have gone through the plaint dated June 14, 2017 and I find that it contained several prayers among them being a prayer for a permanent injunction and a mandatory injunction compelling the defendant to release title deeds to all that premises known as Mombasa/Block/XX/126 and 127 to the plaintiffs and declarations on interests, penalties and other charges that the defendant had charged on the 3rd plaintiff’s accounts that it held in favour of the said plaintiff.

29. The application herein has been brought under the provisions of Order 2 Rule 15 1(a), (b), (c) and (d) of the Civil Procedure Rules. However, looking at Order 2 Rule 15, one finds that for an application under sub-rule 1(a), no evidence shall be admissible but the application shall state concisely the grounds on which it is made. Therefore, in an application to strike out a plaint for failure to disclose a reasonable cause of action, the applicant is not expected and/or required to adduce any evidence. Order 2 Rule 15(2) of the said rules is very specific and states that no evidence shall be admissible in an application under sub-rule (1)(a) but the application shall state concisely the grounds on which it is made. Therefore, any application brought under Order 2 Rule 15(1), (b), (c), and (d) of the Civil Procedure Rules, 2010, requires evidence to be offered.

30. In my considered view, the fact that the application herein has been brought under the provisions of Order 2 Rule 15 (1)(a), (b), (c), & (d) of the Civil Procedure Rules is a fatal and incurable mistake. It is apparent that this Court is being invited by the defendant to consider the affidavit evidence which should have been adduced in support of an application brought under Order 2 Rule 15 (1)(b), (c), and (d) of the said Rules, to determine an application also brought underOrder 2 Rule 15(1)(a) of the Civil Procedure Rules.

31. The Court of Appeal in Olympic Escort International Co. Ltd & 2 others vs Perminder Singh Sandru & another [2009] eKLR, considered an application made under the former Order VI Rule 13 (1)(a) of the Civil Procedure Rules and held that-“We think for our part that it was inappropriate to combine the two prayers, one which requires evidence before a decision is made and one that does not… I will here add that, since our legislature in its wisdom decided that the grounds in rule 15(1) of Order 2 are in the alternative and that three (3) out of four (4) of them, that is Rule 15 (1) (b) (c) and (d) may be based on evidence whilst the one under Rule 15 (1) (a) should not, I do hold that whilst a party can bring an application combining the grounds in Rule 15 (1) (b) (c) and (d) – such an application cannot and should not be brought with a ground under Rule 15 (1) (a). This is so because, if those grounds are combined, there would definitely be prejudice in that the court would have to look at the evidence produced in support of the grounds under sub rule (1) (b) (c) and (d) yet sub rule (2) has specifically barred the Court from considering any evidence once an application under Rule 15(1) (a) is up for consideration. Applying the rule of interpretation that a latter provision amends or varies an earlier provision, I hold that the intention of the legislature in enacting Rule 15(2) was that if an application is brought to strike out a pleading for disclosing no reasonable cause of action or defence, no evidence at all shall be adduced in support of such an application. That is so even if any of the grounds thereon are under Order 15 Rule (1) (b) (c) and (d). In my view, prejudice must be guarded against and it will be very difficult for the court to consider the other grounds based on the evidence produced then disabuse itself of that evidence when considering the ground of disclosing no reasonable cause of action under Rule 15 (1) (a).”

32. Irrespective of the fact that the above decision was rendered before the promulgation of the Constitution of Kenya, 2010 which brought about Article 159 that requires Courts to decide matters without undue regard to procedural technicalities, Nzioka J in Milenium Chuma Limited vs Platinum Steel Limited[2017] eKLR when dealing with a similar application held as follows-“As the provisions of Order 2 Rule 15 (2) are capped in mandatory form, an application that cites all grounds thereunder, some that require evidence and others which do not require evidence, it fatally defective and susceptible to striking out. Although provisions of Article 159 of the Constitution of Kenya, 2010 requires that, the court decide matters without undue regard to technicalities, the issue herein, is not a technical issue. It is a serious issue of procedural requirement of the law”.

33. Having found that the application herein is fatally defective by virtue of citing all the sub-paragraphs under Order 2 Rule 15(1) of the Civil Procedure Rules, the same cannot succeed. Be that as it may, even if the application was proper, it would still have failed since the plaint dated June 14, 2017 was not comprehensively determined by the audit exercise. There are still outstanding issues such as the release of title deeds for the premises known as Mombasa/Block/XX/126 and 127 to the plaintiffs. Such outstanding issues are yet to be fully determined through a full trial on merits.

34. The application herein is devoid of merit and the same is dismissed with costs to the plaintiffs.

It is so ordered.

DATED, SIGNED andDELIVERED atMOMBASA on this8th day ofJuly, 2022. Ruling delivered through Microsoft Teams Online Platform.NJOKI MWANGIJUDGEIn the presence of:No appearance for plaintiffsMr. Hassan for the defendantMr. Oliver Musundi – Court Assistant.Page 3 of 3 NJOKI MWANGI, J.