Chepkwony v Cheluget (Commercial Case E638 of 2026) [2026] SCC 227 (KLR) (21 August 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE SMALL CLAIMS COURT OF KENYA AT UASIN GISHU COUNTY COURT NAME: ELDORET SMALL CLAIMS COURT** **CASE NUMBER: SCCCOMM/E638/2026** **MONICA JEPLETING CHEPKWONY VS REBECCA CHELUGET** **RULING** 1. Before me for determination is the Notice of Motion application dated 23rd June, 2026 brought by the respondent/Applicant under Order 2 Rule 15 1 (a), (b) (c) and (d) of the Civil Procedure Rules, Section 1A, 1B and 3A of the Civil Procedure Act seeking the following orders: a. That the claimant's statement of claim dated 20th May, 2026 be struck out in its entirety b. That the claim be dismissed with costs and for court to issue further orders it may deem fit. 1. The application is premised on the grounds set out on the body of the Notice of Motion and is supported by the affidavit of the applicant, Rebecca Cheluget. In substance the applicant contends that the claimant/ respondent's entire claim is founded upon an alleged arrangement whereby the respondent and several other persons paid monies to facilitate acquisition of employment opportunities. She deposes that according to the claimant's own pleadings, the applicant herein allegedly represented that she possessed the requisite authority, connection and influence to facilitate employment opportunity at Ken-knit limited. That the claimant/respondent and 31 other individuals paid facilitation fees of ksh 25,000/- per person for that purpose. 2. The applicant further deposes that the claim of ksh 757,000/- arises solely from the alleged failure of the said arrangement and that the said purported agreement pleaded by the claimant is contrary to public policy and incapable of enforcement by this court. She averred that the statement of claim discloses no reasonable cause of action, its legally unsustainable and this court cannot aid a party seeking recovery of monies allegedly paid for purposes of influencing or procuring employment through personal connection, influence or facilitation. 3. In response, the claimant/Respondent filed a replying affidavit sworn on 24th July 2026. The claimant deponed that the applicant/respondent is deliberately mischaracterizing the nature of the transaction to unjustly enrich herself and evade legal liability under the guise of the doctrine of ex turpi causa non oritur actio. That the applicant held herself to the claimant and 31 others as a legitimate agent capable of securing employment. That base on her senior position as the head of Human resource at Ken-knit limited, the applicant represented that the sum of kah 25,000/- was a standard, mandatory administrative and recruitment fee necessary for processing the employment documents at the company. 4. The claimant further deposes that they genuinely believed they were participating in a lawful recruitment process orchestrated by the Head of Human resource, and they did not pay the monies as bribes or unlawful facilitation fees to buy influence. Further, that the claim for ksh 757,000/- arises from the applicant/respondent’s fraudulent misrepresentation and obtaining money by false pretenses in her purported capacity as an agent of ken-knit limited, rather than a failure of an illegal arrangement. She reiterated that the claim discloses a valid reasonable and legally sustainable cause of action grounded in fraud, mispresentation and money held and received. That the proceedings are neither frivolous nor an abuse of the court process and the application should be dismissed to allow the substantive hearing of the claim on on its merits. 5. The application was canvassed by way of written submissions. From the application, replying affidavit and the trivial submissions, the issue for determination is: 6. *Whether the claim should be struck out?* 7. Order 2 Rule 15(1) of the Civil Procedure Rules provides: (1) 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; or (b) it is scandalous, frivolous or vexatious; or (c) it may prejudice, embarrass or delay the fair trial of the action; or (d) 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. 1. The jurisdiction to strike out pleadings is discretionary. However, it is a jurisdiction that must be exercised cautiously and sparingly because striking out a pleading summarily determines a matter without the parties having the benefit of a full trial. 2. In the case of **Meya Agri Traders Ltd v Elgon House (2010) Ltd (Civil Appeal 15 of 2020) [2023] KECA 574 (KLR)** the Court of Appeal held that stricking out pleadings is a discretionary power of the trial court. However, as rightly submitted by the appellants, striking out of pleadings is a draconian tool which must only be deployed by courts in the clearest of incidences. In our view, if a pleading raises a triable issue irrespective of whether it will succeed or not, the suit ought to be allowed to proceed to trial. On the contrary, where a pleading is of no substance or ground, mere denial, fanciful and or is of some ulterior motive the court should not shy away from invoking its powers to strike out such a suit. Invoking the power to strike out pleadings must be in adherence to the well laid down principles requiring that it be exercised sparingly and in clear and obvious cases. A pleading may only be struck out if the elements contained in Order 2 Rule 15(1)(a), (b), (c) and (d) of the Civil Procedure Rules are in existence. The court further relied on the case of D**.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & another[1980]** where it was held that “ The court ought to act very cautiously and carefully and consider all facts of the case without embarking upon a trial thereof, before dismissing a case for not disclosing a reasonable cause of action or being otherwise an abuse of the process of the court..........If an action is explainable as a likely happening which is not plainly and obviously impossible the court ought not to overact by considering itself in a bind summarily to dismiss the action. A court of justice should aim at sustaining a suit rather than terminating it by summary dismissal. Normally a law suit is for pursuing it. 3. No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action, and is so weak as to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a court of justice ought not to act in darkness without the full facts of a case before it. This court is therefore expected to consequently examine the Statement of Claim as a whole and determine whether, assuming the pleaded facts to be true, the Claimant has disclosed a cause of action which is capable of succeeding. 4. The Applicant's principal contention is that the Claimant's claim is founded upon an illegal agreement to pay money to secure employment through influence and personal connections and that no court can enforce such an arrangement. There is considerable force in the applicant's submission concerning the enforceability of an agreement whose very purpose is to procure employment through bribery, improper influence or other unlawful means. 5. The doctrine of ex turpi causa non oritur actio is well established in Kenyan law. The Court of Appeal in **Kenya Airways Limited v Flora (Civil Appeal 54 of 2005) [2013] KECA 545 (KLR)** reaffirmed that no court ought to enforce an illegal contract or allow itself to be made the instrument of enforcing obligations alleged to arise out of a contract or transaction which is illegal, if the illegality is duly brought to the notice of the court, and if the person invoking the aid of the court is himself implicated in the illegality. It matters not whether the defendant has pleaded the illegality or whether he has not. If the evidence adduced by the plaintiff proves the illegality the court ought not to assist him.” The principle has been applied in more recent Kenyan decisions. In **Mureithi v Mwangangi [2024] KEHC 7814 (KLR),** the High Court held that an agreement to pay a bribe to shipping officials could not be converted into an enforceable contractual obligation and declined to assist a party seeking enforcement of such an arrangement. 6. Courts have consistently held that where the claimant's own case demonstrates participation in an illegal transaction, the Court will not enforce the bargain. The principle is founded not upon sympathy for the defendant but upon public policy and the integrity of the judicial process. However, the issue before this Court at this stage is not whether the alleged arrangement was illegal. The issue is whether, on the face of the Statement of Claim, the Court can conclusively determine that the Claimant's cause of action is founded upon an illegal agreement and therefore incapable of proceeding to trial. In my view, the answer is in the negative. In my view, the answer is in the negative. The Claimant's pleaded case, as presented before this Court, is materially different from a straightforward claim for enforcement of an agreement to procure employment by unlawful influence. The Claimant specifically alleges that the Applicant represented herself as the Head of Human Resource at Ken-Knit Limited and represented that the Kshs.25,000/- payment was a legitimate and mandatory administrative or recruitment fee. The Claimant further alleges that the applicant received the money pursuant to those representations and that no employment was subsequently secured. The Claimant consequently pleads fraud and misrepresentation and alleges that the money was obtained through false representations as to the Applicant's authority and the purpose for which the money was required. Whether those allegations are true is plainly a matter of evidence. 7. At this stage, the Court cannot determine whether the Claimant knew that the payment was intended to purchase influence, whether the Applicant genuinely held herself out as an authorised representative of Ken-Knit Limited, whether Kshs.25,000/- was in fact a legitimate recruitment or administrative fee, whether the Applicant had authority to receive the money, or whether the representations made to the Claimant were false. Those are matters which require evidence and, where necessary, cross-examination. Conversely, if the evidence establishes that the Claimant was induced to part with her money by fraudulent representations made by the Applicant, without the Claimant's knowledge that the transaction was unlawful, the Court would have to determine the legal consequences of those facts independently of any purported illegal agreement. It would therefore be premature at this stage to conclusively characterise the transaction as an illegal bargain and thereby shut out the Claimant from the seat of justice. 8. The Court is fortified in this conclusion by the principle that in determining an application to strike out, it must avoid making definitive findings on contested factual matters which properly belong to the trial. I therefore find that the Statement of Claim cannot, at this interlocutory stage, be said to be plainly and obviously devoid of a reasonable cause of action. 9. The claim is not frivolous merely because the applicant believes that the claim is unlikely to succeed nor is it vexatious merely because the applicant disputes the factual allegations made against her. Pleadings will ordinarily only be struck out on this ground where it is plainly lacking in substance, has no serious purpose or reasonable prospect of succeeding, or is brought for an improper purpose. In the present case, the Claimant has pleaded a specific transaction, a specific sum of money, representations allegedly made by the Applicant, the capacity in which the Applicant allegedly acted and the alleged failure to account for the money. 10. No sufficient basis has been demonstrated to show that the Statement of Claim is so framed as to prejudice, embarrass or delay the fair trial of the proceedings. Indeed, the competing affidavits demonstrate that the parties are fully aware of the transaction in dispute and of the respective positions they intend to advance at trial. The power to strike out pleadings is intended to prevent the Court from being burdened with claims which are plainly hopeless, frivolous or abusive. It is not intended to determine contested factual questions which require the calling and testing of evidence. 11. This Court is also entitled to take judicial notice of the increasingly common nature of disputes arising from persons who hold themselves out as having the capacity, connections or influence to procure employment for unsuspecting members of the public, whether within the country or abroad, upon payment of money. Courts have, in numerous matters, been called upon to determine disputes arising from alleged recruitment fees, promises of employment, purported employment agents and persons who represent that they can secure employment opportunities in foreign jurisdictions or local institutions. The prevalence of such claims is a matter that the Court cannot ignore, particularly given the potential for vulnerable members of the public to lose substantial sums of money through fraudulent employment schemes. 12. However, the existence of such a menace does not, of itself, determine the merits of the present claim. Each case must be considered and determined on its own pleadings and evidence, including the nature of the representations made, the purpose for which the money was paid, the knowledge and intention of the parties, and whether the transaction was lawful or was procured through fraud or misrepresentation. The Court must therefore remain alive to the wider public interest in discouraging and preventing fraudulent employment procurement schemes, while at the same time ensuring that a party is not denied a hearing merely because the nature of the claim resembles other cases that have come before the Courts. In the circumstances, the alleged illegality or fraud must be established on the evidence at the substantive hearing rather than conclusively presumed at the interlocutory stage. 13. Be that as it may, the application dated 23rd June, 2026 id hereby dismissed. Cost shall abide the outcome of the main claim. 14. Mention on 12th October, 2026 for compliance with order 11 of the CPR. Leave to appeal is hereby granted. Ruling signed, dated and delivered electronically at Eldoret this 21st day of August, 2026 By M.E Aligula-RM In the presence of C/A Mr. Lepatoiye