https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7499

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NAIROBI** **COMMERCIAL AND TAX DIVISION** **HCCOMM NO. E072 OF 2022** CHANIA GARDENS LIMITED...…………………………….…..1ST PLAINTIFF GWEKA LIMITED………………………………………..………2ND PLAINTIFF -VERSUS- KINGDOM BANK LIMITED.……………………………….…1ST DEFENDANT AL-HILAM AUCTIONEERS…………………………………..2ND DEFENDANT **RULING** 1. The plaintiffs/applicants filed a Notice of Motion application dated 24th October 2025 pursuant to the provisions of Sections 1A, 1B & 3A of the Civil Procedure Act, Order 2 Rule 15(c) & (d) of the Civil Procedure Rules, 2010, and all other enabling provisions of the law. The plaintiffs pray for the striking out the defendants’ statement of defence dated 9th October 2025 and filed on 13th October 2025. 2. The plaintiffs’ application is premised on the grounds on the face of the Motion, and it is supported by an affidavit sworn on 27th October 2025 by Mr. Gabriel Kethi Gathumbi, an Advocate of the High Court of Kenya and learned Counsel for the plaintiffs. Mr. Gathumbi averred that on 18th September 2025, the Court delivered a Ruling directing the defendants to file and serve their statement of defence within 14 days, a deadline which lapsed on or about 2nd October 2025. He stated that the defendants filed and served their defence on 13th October 2025, outside the prescribed timeline and without seeking leave of the Court or providing any explanation for the delay. 3. He contended that this conduct demonstrates disregard for the Court Orders, particularly given that the defendants had previously been granted the Court’s discretion and had already prepared a draft defence. Mr. Gathumbi deposed that the defendants have a history of failing to comply with procedural rules and timelines, thereby causing delays in the matter. He described the late filing as an abuse of the Court process and urged this Court to strike out the defendants’ statement of defence for being improperly on record. 4. In opposition to the application herein, the defendants filed a replying affidavit sworn on 18th November 2025 by Mr. Jackson Kimathi, the 1st defendant’s Head of Legal. Mr. Kimathi confirmed that pursuant to the Court’s Ruling delivered on 18th September 2025, the defendants were granted leave to file and serve their statement of defence within fourteen (14) days, the Court having been satisfied that the proposed defence raised *bona fide* triable issues deserving of determination on merits. 5. He contended that although the defence dated 9th October 2025 was eventually filed on 13th October 2025, the delay was occasioned by inadvertent administrative challenges following the abrupt resignation of the Advocate who was handling the matter on 29th September 2025, which disrupted operations and increased workload for the remaining Counsel. He asserted that the omission was neither deliberate nor intended to obstruct justice, and that upon discovery, prompt steps were taken to file and serve the defence. 6. Mr. Kimathi deposed that the delay of approximately eleven (11) days was minimal and excusable, and that it would be unjust to penalize the defendants for Counsel’s inadvertent mistake. He emphasized that the defendants have since complied with pre-trial requirements under Order 11 of the Civil Procedure Rules and are ready to proceed to hearing, where the plaintiffs will have the full opportunity to present and challenge evidence. He maintained that substantive justice should prevail over procedural technicalities and stated that striking out of pleadings is a drastic remedy reserved for the clearest of cases. Mr. Kimathi indicated that no prejudice has been demonstrated by the plaintiffs, and that no default judgment has been entered to justify the striking out of the defence. 7. In a rejoinder, the plaintiffs filed a further affidavit sworn on 26th November 2025 by Mr. Gabriel Kethi Gathumbi, an Advocate of the High Court of Kenya and learned Counsel for the plaintiffs. Mr. Gathumbi deposed that the defendants’ failure to file their defence within the timelines set by the Court must be viewed in light of their prolonged delay of over three (3) years since the suit was filed, without having filed a defence. He asserted that the delay cannot be considered as minimal, as it is nearly double the period granted by the Court, and that no explanation or request for indulgence was made within the stipulated time. 8. The instant application was canvassed by way of written submissions. The plaintiffs’ submissions were filed by the law firm of Gathumbi & Company Advocates on 1st December 2025, whereas the defendants’ submissions were filed on 11th December 2025 by the law firm of KRK Advocates LLP. 9. Mr. Gathumbi, learned Counsel for the plaintiffs submitted that by a Ruling delivered on 18th September 2025, the Court granted leave to the defendants and directed them to file a defence within (14) fourteen days. He pointed out that the defendants failed to comply with this timeline and instead filed their defence on 13th October 2025, eleven (11) days out of time, without seeking leave of the Court, thus rendering the defence irregular, incompetent, and improperly on record. 10. Mr. Gathumbi relied on the cases of **Nicholas Kiptoo Arap Korir Salat v IEBC & 7 others** [2014] eKLR and **Republic v Speaker of Nairobi City County Assembly & another Exparte Evans Kidero** [2017] KEHC 6101 (KLR), and argued that the defendants’ failure to comply with Court-ordered timelines rendered their defence irregular and liable to be struck out, since no explanation was offered to them and no application was made to regularize the position before the Court. 11. Mr. Kuria, learned Counsel for the defendants relied on the Court of Appeal case of **D.T Dobie & Company (Kenya) Ltd v Muchina** [1982] KLR 1 and submitted that striking out of pleadings is a drastic and discretionary remedy that ought to be exercised sparingly and only in the clearest of cases where a pleading is wholly untenable. He further relied on the Court of Appeal case of **Philip Keipto Chemwolo & another v Augustine Kubende** [1986] KECA 87 (KLR), for the principle that mistakes of Counsel should not be visited upon an innocent litigant. Counsel argued that the plaintiffs’ application is premised solely on the fact that the defence was filed eleven (11) days out of time, allegedly rendering it irregular. He asserted that Courts have consistently declined to strike out pleadings in such circumstances, especially where no prejudice is demonstrated, as in the case of **Fred Kiithusi Kula & another v Housing Finance Company Limited & another** [2021] KEHC 8310 (KLR). 12. Mr. Kuria contended that the delay arose from inadvertent administrative challenges following the abrupt resignation of the Advocate handling the matter, which disrupted operations and that upon discovery, the defence was promptly filed and served without further delay. He characterized the delay as minimal and neither deliberate nor intended to obstruct justice. Counsel submitted that the Court had already found that their proposed defence raised *bona fide* triable issues when granting leave on 18th September 2025, and that they have since complied with pre-trial requirements under Order 11 of the Civil Procedure Rules. Emphasizing that substantive justice should not be sacrificed at the altar of procedural technicalities, he urged this Court to exercise its discretion in favour of sustaining the suit for determination on merits, rather than striking out the defence. **ANALYSIS AND DETERMINATION.** 1. I have considered the instant application, the grounds on the face of it, and the affidavit filed in support thereof. I have also considered the replying affidavit by the defendants and the written submissions by Counsel for the parties. The issue that arises for determination is whether the defendants’ statement of defence dated 9th October 2025 and filed on 13th October 2025 should be struck out. 2. Striking out of pleadings is provided for under the provisions of Order 2 Rule 15 of the Civil Procedure Rules, 2010, which states as hereunder – 3. ***At any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that—*** 4. ***it discloses no reasonable cause of action or defence in law; or*** 5. ***it is scandalous, frivolous or vexatious; or*** 6. ***it may prejudice, embarrass or delay the fair trial of the action; or*** 7. ***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.*** 8. ***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.*** 9. ***So far as applicable this rule shall apply to an originating summons and a petition.*** 10. Courts have the discretion to strike out pleadings, but in doing so they are reminded that striking out of a suit and/or pleading is a draconian and drastic measure which should be resorted to with caution, sparingly and out of necessity. It is only in instances where a pleading cannot be salvaged by an amendment that Courts will utilize this procedure. This position was elucidated by the Court in the case of **Geminia Insurance Co. Ltd v Kennedy Otieno Onyango** [2005] KEHC 374 (KLR), where it was held that *-* ***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.*** 1. The Court of Appeal in the case of **Yaya Towers Limited v Trade Bank Limited (In Liquidation)** [2000] KECA 427 (KLR),had the opportunity to address itself on the issue, and made the following observation: - ***A plaintiff is entitled to pursue a claim in our Courts however implausible and however improbable his chances of success. Unless the defendant 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. In Lawrence v Lord Norreys (1890) 15 App Cas 210 at 219, Lord Herschell said:-*** ***“It cannot be doubted that the Court has an inherent jurisdiction to dismiss an action which is an abuse of the process of the court. It is a jurisdiction which ought to be sparingly exercised, and only in very exceptional cases. I do not think its exercise would be justified merely because the story told in the pleadings was highly improbable, and one which it was difficult to believe could be proved.”*** 1. It is not in contest that vide a Ruling delivered on 18th September 2025, this Court granted the defendants leave to file and serve their statement of defence within fourteen (14) days. It is also not disputed that the defendants did not comply with this timeline, as they filed their statement of defence on 13th October 2025, approximately eleven (11) days after the lapse of the period granted by the Court. It is further not in dispute that the defendants neither sought leave of the Court prior to the expiry of the timeline nor moved the Court subsequently, to regularize the position by way of an application for extension of time. 2. The question that arises from the foregoing circumstances, is the legal effect of such non-compliance. The plaintiffs’ position is that a pleading filed out of time without leave is irregular, incompetent and liable to be struck out. The Court in **Kimere & another (Both t/a Gichuki Kimere & Co. Advocates) v Kihato (Sued in his Capacity as the Administrator of the Estate of Jane Mukuhi Matu - Deceased)** [2023] KEHC 19986 (KLR), held that: - ***The law is settled that striking out pleadings is a draconian act of last resort that must only be employed in very rare and clear cases. The jurisdiction to strike out pleadings being discretionary, must also be exercised judiciously and sparingly. “If a party’s pleadings raise even one bona fide triable issue, then the party should be given leave to defend (Postal Corporation of Kenya v I.T. Inamdar & 2 others [2004] eKLR).*** ***It must always be borne in mind that a triable issue is not necessarily one that would ultimately succeed. It need only be a bona fide issue. (Olympic Escort International Co. Ltd. & 2 Others v Parminder Singh Sandhu & Another [2009] eKLR).*** 1. While this Court is alive to the principle that striking out of pleadings is a drastic remedy to be exercised sparingly, as espoused by the Court of Appeal in the case of **D.T Dobie & Company (Kenya) Ltd v Muchina** (supra), that discretion must nonetheless be exercised judiciously and in a manner that upholds the authority of Court orders and the integrity of judicial processes. Court orders are not issued in vain, and parties who benefit from the Court’s discretion are under a corresponding obligation to strictly comply with the conditions attached thereto. 2. In this case, it is noteworthy that the defendants had previously failed to file a defence, leading to an interlocutory judgment being entered against them on 11th July 2023, which was subsequently set aside by this Court in a Ruling delivered on 15th May 2024. The record further shows that the defendants were thereafter indulged by the Court and granted a further opportunity to file their defence out of time, subject to compliance within a specific timeline. In the premise, this Court finds that the defendants’ failure to comply with that timeline, without seeking any extension of time or offering a contemporaneous explanation, demonstrates a pattern of disregard for procedural rules and Court directions. 3. This Court is therefore of the considered view that the explanation offered by the defendants being the abrupt resignation of the Advocate handling the matter and the resulting administrative challenges cannot suffice in law in the absence of a formal application for extension of time, upon which the Court can properly exercise its discretion. The law places an obligation upon a defaulting party to move the Court appropriately and timeously. It is however manifest from the Court record that the defendants did not take any steps to regularize their position, either before or after filing their statement of defence out of time. This omission therefore deprived the Court of the opportunity to exercise its discretion in a structured and lawful manner. 4. It is this Court’s further finding that the argument that the delay was minimal cannot be considered in isolation. The delay must be viewed in the broader context of the defendants’ conduct in these proceedings, including their earlier failure to file a defence for a prolonged period. In light of the foregoing, the defendants’ failure to file a defence to this suit cannot be said to be trivial or excusable. Courts have consistently held that litigation must come to an end and procedural timelines are designed to ensure expeditious disposal of cases. 5. At this juncture, it is important to note that this Court is also not persuaded that the plaintiffs must demonstrate specific prejudice in order to succeed in the application herein. Nevertheless, while prejudice is a relevant consideration, the breach of a clear Court Order is itself prejudicial to the administration of justice. I am therefore satisfied that to condone such conduct would undermine the authority of the Court and encourage indiscipline in litigation. 6. In the circumstances, this Court is satisfied that the defendants’ statement of defence dated 9th October 2025 is irregular, incompetent, and improperly on record, having been filed in breach of a Court Order and without leave. I therefore find that this is one of the clearest of cases where the Court’s discretion ought to be invoked against the defendants, given their repeated non-compliance and failure to regularize their position. 7. This Court finds that the plaintiffs’ application dated 24th October 2025 is merited. It is allowed in the following terms :- 8. **The defendants’ statement of defence dated 9th October 2025 and filed on 13th October 2025 is hereby struck out; and** 9. **Costs of this application shall be borne by the defendants.** It is so ordered. **DATED, SIGNED**and**DELIVERED**at**KIAMBU** on this**22ND** day of**MAY 2026.** **Ruling delivered through Microsoft Teams online Platform.** **NJOKI MWANGI** **JUDGE** **In the presence of:-** Mr. Gachanja h/b for Mr. Gathumbi for the plaintiffs/applicants Ms Jaleba h/b for Mr. Kuria for the defendants/respondents Ms Julia – Court Assistant.