[2016] KEHC 1129 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

CIVIL SUIT NUMBER 15 OF 2015

DORINE AKULA................................................................................PLAINTIFF

VERSUS

APA INSURANCE COMPANY LTD.............................................1ST DEFENDANT

RULING

1. On the 5th May 2016, the Notice of Motion dated 9th November 2015, filed by the plaintiff was disallowed and reasons for the same reserved to a later date.

By the said application, the plaintiffs sought that:

(1)That the Amended defence dated 17th April 2015 be struck out.

(2)That judgment be entered in the plaintiffs favour as prayed in the Amended plaint dated the 8th April 2015.

(3)That costs of the application be borne by the defendant/Respondent.

2. The application is premised on grounds that the Amended defence does not disclose reasonable defence in law and it is frivolous, vexatious and may prejudice and delay the fair trial of the action.

A perusal of the supporting affidavit sworn on the 9th November 2015 by Felix O. Orege Advocate for the plaintiffs show that this is a declaratory suit, judgment in the primary suit Nakuru HCCC 145/2011 having been entered for the plaintiffs against the Defendants insured, Akamba Bus Services Ltd on the 19th May 2014 in the sum of Kshs.5,741,125/= with costs and interest. It further discloses that no appeal has been preferred against the said judgment, and that although the defendant had intimated its willingness to pay Kshs.3,000,000/= as obligated under the provisions of Chapter 405 Section 5, it has failed to do so. The plaintiff therefore seeks to strike the Amended defence dated 17th April 2015.

3. I have looked at the said Amended defence. It is a denial of the claim and the judgment subject of this declaratory suit. It is averred that liability is not covered by its policy and can therefore not be enforced under Section 10 of Chapter 405. It further states that the said judgment was irregular and unlawful as it was against a non-existent party, namely Akamba Bus Services Ltd which had been placed under receivership and thus no legal capacity to sue or being sued. It further raises the issue that under Section 8 of the Act, the Judgment is in excess of the limit set under the Act of Kshs.3,000,000/= in respect of one claim.

4. The application is opposed by grounds of opposition dated 28th April 2016. It states that the application is premature, inept and incompetent as the judgment in the primary suit is irregular and cannot be enforced by way of a declaratory suit, that the defence on record is meritorious and raises serious triable issues.

5. In his submissions, Mr. Okeke Advocate for the applicant stated that there being no appeal against the primary suit, issues of irregularity as raised in the defence are not subject of the declaratory suit, and can not be challenged in this suit.

6. The application before this court seeks to strike out the defendants suit under Order 2 Rule 15 of the Civil Procedure Rules, and Section 1A, 1B and 3A of the Civil Procedure Act.

It states:

“(1)At any stage of the proceedings the court may order to be struck out or amend any pleadings on the ground that:-

(a)It discloses no reasonable cause of action or defence in law

(b)It is scandalous, frivolous or vexatious or

(c)It may prejudice, embarrass or delay the fair trial of the action or

(d)Its otherwise an abuse of the court process and may order the suit be stayed or dismissed or judgment to be entered accordingly as the case may be.”

In its defence, the defendant submits that the entity against which the judgment of the trial court was delivered is non-existence. Another issue put forth by the defence is that the judgment cannot be enforced under Section 10 of the Chapter 405.

7. It is trite that striking out any suit or pleading is draconian. The parameters that a court ought to strike out are stated under Order 2 Rule 15. Does the Amended defence dated 17th April 2015 raise anyone triable issue?

Madan J.A (as he then was) in his judgment in D.T. Dobie and Company (Kenya) Limited -vs- Muchina (1982) e KLR 1 discussed the issue at length. He stated:

“the power to strike out should be exercised after the court has considered all facts, but it must not embark on the merits of the case itself as it is solely reserved for the trial. On an application to strike out pleadings no opinion should be expressed as this would prejudice fair trial and would restrict the freedom of the trial judge in disposing the case.”

Further, it is trite that the power to strike out is not Mandatory but only permissive. It is to be exercised having considered the circumstances relating to the offending pleading. This power should be exercised judiciously and with caution so as not to drive a party away from the justice seat. It should be exercised in very clear cases where the pleading is plainly clear and untenable.

8. The defence raised by the defendant in the suit cannot be said to be evidently plain and clear for this court to be persuaded to strike it out. I am minded that the subject motor vehicle may have been insured by the defendant at the date of accident. As to whether or not the insurance company is liable, having not been a party in the primary trial also is an issue for determination.

The trial issues may not succeed after trial, but they ought to be tried. As stated in the case KCB -VS- Suntra Investment Bank Ltd (2015) e KLRstated:

“--- an evasive and vague defence from which the plaintiff cannot know what defence is being pleaded will normally be struck out on the grounds that it is wanting in seriousness and tends to annoy.”

and that:

“The term “abuse of the process of court” connotes that the process of the court must be carried out properly and honestly and in good faith, and it means that the court will not allow its functions as a court of law to be misused”

9. The defence subject of this application cannot be said to be an abuse of the court process. It raises fundamental issues of law for determination. Even if it is one issue, it ought to go for trial.

The defendant having not been a party at the primary trial ought, in my view be given its day in court.

10. For the above reasons, the application dated the 9th November 2015 is disallowed. However, for the ends of justice to be seen, and in enforcement of the oxygen principles as stated under Sections 1A, 1B and 3A of the Civil Procedure Act,I direct that the plaintiffs do proceed with speed and fix the case for directions pursuant to Order 11 of the Civil Procedure Rules and for hearing on priority basis, and in any event within 90 days of this ruling.

Costs of the application shall be costs in the cause.

Dated, Signed and delivered in open court this 15th day of September 2016

JANET MULWA

JUDGE