[2001] KEHC 163 (KLR)
The court found that the application to strike out the suit did not meet the threshold for such a drastic remedy. There was no clear evidence that the suit was scandalous, frivolous, vexatious, or an abuse of the court process. The fact that an interlocutory injunction had been granted did not mean the suit was...
Source-derived case information.
- Citation
- [2001] KEHC 163 (KLR)
- Parties
- Plaintiff: Christopher Gikonyo Maina; Defendant: K-Rep Holdings Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 2662 of 1998
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Suit
- Outcome
- application dismissed with costs to the plaintiff
- Judges
- ARM Visram
- Legal Topics
- Striking Out Pleadings, Abuse of Process, Interlocutory Injunctions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Christopher Gikonyo Maina
Plaintiff
K-Rep Holdings Limited
Defendant
Procedural Posture
Civil Case / Ruling on Application to Strike Out Suit
Legal Issues
- 1 Whether the suit should be struck out as scandalous, frivolous, vexatious, or an abuse of court process.
- 2 Whether the suit has been overtaken by events due to the grant of interlocutory injunction.
Ratio Decidendi
The court found that the application to strike out the suit did not meet the threshold for such a drastic remedy. There was no clear evidence that the suit was scandalous, frivolous, vexatious, or an abuse of the court process. The fact that an interlocutory injunction had been granted did not mean the suit was overtaken by events or that the substantive issues had been settled. The court emphasized that striking out should be reserved for clear and obvious cases, which was not the situation here. Accordingly, the application was dismissed with costs to the Plaintiff.
Court Disposition
application dismissed with costs to the plaintiff
Orders
- The Defendant's application to strike out the suit is dismissed.
- Costs awarded to the Plaintiff.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
HIGH COURT CIVIL CASE NO. 2662 OF 1998
CHRISTOPHER GIKONYO MAINA………………………PLAINTIFF
- V E R S U S –
K-REP HOLDINGS LIMITED……………………………DEFENDANT
R U L I N G
This is an application by the Defendant under Order VI Rule 13(1) (b) (c) and (d) and 16 of the Civil Procedure Rules. In it, the Defendant seeks to have this suit struck out on the basis that it is scandalous, frivolous and vexatious and that it may prejudice, embarrass or delay the fair trial of the action and is otherwise an abuse of the Court process. It was also stated that the Plaintiff’s cause of action had already been overtaken by events.
On 27th November, 1998 the Plaintiff filed this suit against the Defendant seeking the following:
(a) A declaration that the distress for rent was unlawful; and
(b) an injunction to restrain the Defendant from levying distress and/or interfering with the Plaintiff’s premises and business. On 3rd May, 1999, the Plaintiff filed an application for injunction which was granted.
Mr. Kinyanjui for the Defendant argued that since the prayers sought in the Plaint had already been granted this suit had been overtaken by events as all issues had been settled. The Plaintiff did not file any replying affidavit but his Advocate argued that an application under Order VI rule 13 (1) (b) and (c) was very drastic and that the suit in this case was not hopeless since the Court had granted an interlocutory injunction in it. Although there was no evidence of this, he argued that the suit could be cured by amendment.
As was recognized inNitin Properties Ltd v. Jagjit Sing Kalsi & Ano. NAIROBI C.A. Civil Appeal No. 132 of 1989 (Unreported) (GICHERU, AKIWUMI & SHAH, JJ.A.), the remedy for striking out is a drastic one which ought to be invoked only in plain and obvious cases and should be exercised with extreme caution. It is not clear at all how this suit “may prejudice, embarrass or delay the fair trial of the action.” I do not see any abuse of the process of the Court. The fact that the Plaintiff’s claim was partially allowed in an interlocutory application is not evidence that the suit has been overtaken by events.
I, therefore, dismiss this application with costs to the Plaintiff.
DATED and DELIVERED at NAIROBI this 18th day of June, 2001’
ALNASHIR VISRAM
JUDGE