https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11279

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MARSABIT** **CIVIL SUIT NO. E002 OF 2025** **ETHICS & ANTI CORRUPTION** **COMMISSION …..…......…………………….…………………. PLAINTIFF** **VERSUS** **GALMA GOLICHA….. ……………………………………………1ST DEFENDANT** **ZAINABU HERSI IBRAHIM…………………………….………..2ND DEFENDANT** **SUJO ILDHANI……………………………………….…….……..3rd DEFENDANT** **FRANCIS KARIUKI KAMENDI……………………..…………….4th DEFENDANT** **BASHIR HASSAN ABEY MAMO…………………………………5th DEFENDANT** **HABIBA IBRAHIM DIMBIL………………………………………6th DEFENDANT** **BILAL BASHIR HASSAN…………………………………………..7th DEFENDANT** **DRESCOLL LIMITED…………………………………..…………..8th DEFENDANT** **AND** **MARASABIT COUNTY GOVERNMENT…………………INTERESTED PARTY** **RULING** 1. **INTRODUCTION** 2. The Application before this court for determination is the 5th Defendant/Applicant Notice of motion Application dated 03.12.2025 brought pursuant to provisions of ***Section 1A, 1B, 3 & 3A of the Civil Procedure Act, Cap 21, Order 2 Rule 15 of the Civil Procedure Rules,*** ***and all other enabling provisions of law***. The Applicant’s seek the following prayers, THAT; 1. ***Spent.*** 2. ***That this Honourable court be pleased to declare these proceedings have no legitimate legal basis, are scandalous, frivolous and constitute an abuse of the court process.*** 3. ***That this Honourable court be pleased to strike out this suit, for lack of a legitimate legal basis, lacking bona fides and intending to harass the defendants.*** 4. ***That costs of this Application be in the cause.*** 3. The Application is supported by the grounds on the face of the said application and the supporting affidavit dated 3rd December 2026 sworn by the applicant ***Bashir Mamo***, who depones that the plaintiff/respondent had commenced investigations against them on the basis that they had irregularly obtained payment with respect to tender for supply and delivery of fire engine to the county government of Marsabit. The said investigation were commenced in 2019, based on ulterior motive, hearsay, lacked proper factual foundation, and basically was a malicious witch-hunt, disguised as investigations to intimidate them into abandoning their rightful claim of the outstanding sum owed to the 8th defendant by the interested party herein. 4. It was his contention that the plaintiff’s action, amounted to witch-hunt disguised as investigations, and this was evidenced by the fact that; 5. *The plaintiff had in the year 2022 instituted* ***Anti-corruption & Economic crimes suit No E018 of 2022****, maliciously proceeding against them by alleging that they had irregularly obtained payments with respect of Tender Number ICG/020/2017-2018 and Tender Number ICG/021/2017-2018 for supply and delivery of fire engine, to the County government of Isiolo.* 6. *The plaintiff had demonstrated a malicious pattern of intimidation, inter alia on 6th December 2023, when their chairman Bishop David Oginde, while on JKL live, in a television show on Citizen Tv with national and international viewership, stated that the plaintiff had concluded investigations over fire engine truck supplied to the interested party, Marsabit County, purporting the embezzlement of Kshs.69 million.* 7. *On 12th December 2023, he was arrested from his South C residence, and driven over night to Isiolo where he was charged in* ***Anti-corruption Criminal case No E001 of 2024*** *in violation of his constitution rights, which case was later withdrawn by the director of prosecution after he established that the same was maliciously instigated.* 8. *The plaintiff had also sued the 7th defendant in these proceedings, yet he was not a director of the 8th defendant in 2018 and without doubt, this pattern had established that the plaintiff was impartial, was driven by ill motive and malice in their pursuit of this claim.* 9. The 5th defendant/Applicant went on to explain at length the process undertaken in delivery of the fire tracks to both county government’s of Marsabit/Isiolo and emphasized that both tenders were carried out above board, applicable tax paid, the said fire trucks were inspected, tested before delivery and the pre-delivery report confirmed that all tender specifications were met. Thereafter delivery of both trucks was also acknowledged by both of the county governments and part payment made. It was thus absurd for the plaintiff to allege any illegality or fraud on their part. 10. After they had honoured the tender terms and delivered the fire truck to the interested party herein, they had refused to settle the contractual sum and as a result, they had sued them in **Marsabit High court case Number 3 of 2020** for the sum of **Kshs.62,000,000/=** plus interest thereof at commercial rates from 4th May 2020 until payment in full. The plaintiff herein was fully aware of the said suit as correspondence were exchanged between them and the county secretary-Marsabit county and thus ought to have taken steps to urge their case in the prior suit filed but had failed to do so. They therefore could not be heard to allege that they (the 5th to 8th defendant) had colluded with the interested party in the said matter. Further, they had also independently been in constant communication with the plaintiffs’ investigating officers and supplied them with all documents requested for, but the said investigators had refused and/or neglected to acknowledge/respond to their request to have the investigations closed, which could only be taken to be an indication of malice and misuse of authority aimed at achieving extraneous purposes unconnected with upholding the rule of law. 11. Finally, the 5th respondent averred that the 8th respondent could not be faulted for pricing the fire engine within acceptable margins as they had factored into account its acquisition costs, importation expenses, local taxes and expected profit margins. The interested party herein, too was satisfied that they got value for money in relation to the fire engine and its accessories, and thus authorized part payment of **Kshs.21,995,795/=** thereby affirming the integrity of the entire procurement process. 12. As a result, the cumulative action, malicious investigations, irregular arrest and initiation of various civil suits grounded on speculative notices constituted unconstitutional harassment and in judgment of their rights contrary to **Articles 27,47, and 50 of the constitution**. The applicant thus urged the court to so hold and to strike out the suit and/or to stay this suit pending full compliance with evidentiary and procedural safeguards under the constitution and applicable law. 13. **THE PLAINTIFF’S REPLYING AFFIDAVIT** 14. The plaintiff/ respondent relied on their comprehensive Replying affidavit dated 12th January 2026, sworn by **Mr Abel Tunga**, who described himself as the investigating officer appointed under **Section 23 of the Anti-corruption and Economics crime Act** and was part of the team that investigated the allegations of irregular procurement and award of tender to supply and deliver one (1) fire Engine truck to Marsabit County Government at a cost of **Kshs.62,000,000/=** during the financial year 2018/2019. 15. It was his contention that the said procurement process was marred by massive irregularities, which he extensively laid out in paragraph’s 7(i) to (xix) , 8 and 9 of the said response and as a result had established that the respondents had jointly acted in a fraudulent manner, conspired, corruptly participated and engaged in illegalities in awarding the 8th respondent the aforestated tender, contrary to provisions of ***Article 227(1) of the Constitution, Public Procurement and Asset Disposal Act, ( Cap 412C), the Public Finance Management Act (Cap 412A) and the Anti-corruption and Economic crimes Act (Cap 65)*** and as a result, the 8th Respondent had been illegally paid **Kshs.42,000,000/=** which all the respondents were jointly liable to refund as the said amount had been paid out fraudulently and resulted in the defendants unjustly enriched themselves at the expense of the Kenyan public. 16. In further response to the said application, the plaintiff/ respondent emphasized that they were legally mandated and had capacity to investigate and institute civil proceedings to recover proceeds of corruption and in relation to this case, investigation carried out against the defendant’s was done in good faith, devoid of ulterior motive and based on evidential material recovered during the said investigations. A such no finger could be pointed towards them on the basis that they had infringed on the applicants’ fundamental rights and freedoms. The applicant had also not demonstrated that they had acted without or in excess of the powers conferred by law or acted maliciously, infringed, violated and/or contravened the said law in any manner. 17. The plaintiff emphasized that they were not privy to nor were they a party in **Marsabit High Court case No 3 of 2020**, where judgment was entered in favour of the 8th Respondent. Be that as it may, it was their believe that the said case had been instituted to obtain the courts blessings and/or to sanitize the unlawful procurement process, where excess sums had been paid out to the 8th respondent, which this court in good conscious should not allow the respondents to retain and should instead order them to restitute to Marsabit County Government. 18. The plaintiff also pointed out that the issues in dispute in the present suit against the 1st to 8th defendants have not been heard and finally determined at all and the said issues were different and substantially distinct from the issue pleaded in **Marsabit High Court Case No 3 of 2020**, where notably, issues of corruption, economic crime and unethical conduct against the 1st to 8th defendants were not pleaded. The plaintiff reiterated that the decisions to investigate the respondents was not motivated by any other consideration other than the discharge of their constitutional mandate, they had raised substantive issues for determination and that the respondents would have ample opportunity to defend themselves during trial and thus could not be heard to complain of being subjected to unfair trial. 19. The other issues raised concerning the withdrawn criminal proceedings and/or of existence of a prior/different civil suit against all or some of the defendants, arose from a different cause of action unrelated to this suit, thus could also not be used as the basis for striking out pleadings. They thus strongly urged the court to find that the said application lacked merit and be pleased to dismiss the same. 20. The Other respondents did not file any response to this Application **C. PARTIES SUBMISSIONS.** **(I) The 1st and 2nd Defendants Submissions** 1. The 1st and 2nd defendant relied on their submissions dated 19th February 2026 and delineated the singular issue for determination to be whether the instant proceedings are an abuse of the court process since they are calculated to re litigate and re-open **Marsabit HCCC No 3 of 2020; Drescoll Limited Vs Marsabit County Government.** 2. The plaintiff in this suit had sought for prayers, inter alia that a permanent injunction do issue to restrain the interested party from paying the remaining amount of **Kshs.20,500,000/=**, or any other payment in settlement of the valid judgment and decree of the court in **Marsabit HCCC No 3 of 2020**, yet it was trite law that a judgment made by a court with jurisdiction is binding and conclusive until and unless it is set aside on appeal or review and any other manner is a collateral attack on the said decision. Reliance was placed in ***Section 34(1) of the Civil procedure Act***, and the case of ***Wilson Vs The Queen & Kenya Hotel Properties Limited Vs Willesden Investments Limited & Another*** to support this contention. 3. That being so, the 1st and 2nd defendant urged this court to uphold that this suit was not only frivolous and constituted an abuse of the process of the court, but it also lacked legitimate legal basis and offends the principle of finality in litigation. In view of the aforegoing, the prayers sought in the present application ought to be granted. 4. **The 5th to 8th Defendant’s submissions** 5. The 5th to 8th defendants also relied on their submission dated 6th March 2026, where they also emphasized that the plaintiff had instituted these proceedings with the full knowledge that 8th respondent had already obtained a valid judgment against the interested party, in **Marsabit High Court case No 3 of 2020**, which suit they had prior knowledge of, but took no steps to join and/or oppose the said claim. It was therefore not open for them to attack the said judgment, through the back door over the same subject matter, where the validity of the contract, and liability for payment has been decided by a court of competent jurisdiction. 6. Secondly, it was also to be noted that, the Interested party, as the procurement entity, reviewed and determined the 8th defendant as the eligible tenderer to supply the fire engine. In the cause of investigations, the plaintiff’s investigation officers had interviewed Mr Kulamo Bullo, who indicted that the funds utilised to purchase the fire engine were properly obtained, budgeted for and duly accounted for. No public funds were lost in the said process and therefore there was no basis for refusal to pay the contractual sum. 7. It was therefore clear that the plaintiff action constituted an abuse of the process of the court and justified their plea to have the said suit to be struck out *in limine*. Reliance was placed in the case of ***Republic Vs Paul Kihara Kariuki, Attorney General & 2 Others, Ex parte Law Society of Kenya (2020) Eklr , Muchanga Investments limited Vs Safaris Unlimited (Africa) Ltd & 2 Others, Civil Appeal No. 25 of 2002 (2009) Eklr 229 , Satya Bhama Gandhi Vs Director of Public Prosecution & 3 Others (2018) Eklr & Thuita Mwangi &2 Others Vs Ethics and Anti-Corruption Commission & 3 others ( 2015) Eklr.*** to support this contention. 8. It was therefore their humble submissions that over and above the fact that the instant suit was unlawful and constituted an unprocedural affront, and attack on a validly issued decree of this court, they in any event could also not be guaranteed of a fair trial given the absence of a proper factual foundation, coupled with the plaintiff’s actions where they had without probable cause, engaged in malicious witch-hunt, disguised as investigations against the defendants since the year 2019. Reliance was placed on ***Kuria & 3 Others Vs Attorney General***, where the suit was struck out for absence of a proper factual foundation. 9. In conclusion, they had demonstrated a pattern of malicious intimidation against the 8th defendant and its directors, that the cumulative effect of the plaintiff’s actions, malicious investigation, irregular arrest, and initiation of civil suits grounded on speculative notices constituted an unconstitutional harassment of the defendant’s contrary to **Articles 27,47 and 50 of the Constitution of Kenya 2010**. They thus prayed that the application under consideration be allowed and that the suit be struck out with costs. **(iii) The Plaintiff/Respondent written Submissions** 1. The plaintiff/respondent relied on their submission dated 13th April 2026 to oppose this Application. It was their contention that the said application was incompetent, misconceived and procedurally untenable as it sought for orders to have the suit struck out in a manner not contemplated under the Civil Procedure framework. The respondents had also not pleaded in the defence filed that the proceedings lacked legal basis and therefore the parties were bound by their own pleadings and the court could not grant what was not pleaded. Reliance was placed in **Independent Electoral & Boundaries Commission Vs Jane Cheperenger & 2 others (2015) eKLR** for emphasis of this point. 2. Secondly, it was the plaintiff’s contention that striking out of pleadings was a draconian remedy which the court had to be sparingly use and only in the clearest cases. Order 2 Rule 15(1) provided for four distinct grounds for striking out namely; *(i) No reasonable cause of action, (ii) Scandalous, frivolous or vexatious pleadings, (iii) it may prejudice, embarrass or delay the fair trial of the action, or (iv) is otherwise an abuse of the court process.* 1. **Order 2 Rule 15(2) of the Civil procedure Rules** expressly prohibited reliance on affidavit evidence, which rule the applicant had offended by filing his supporting affidavit, which act rendered the entire application to be procedurally defective. Further, the indiscriminate combination of multiple grounds where the law bars affidavit evidence made the application irregular and incompetent. Reliance was placed in **D.T Dobie & Company (Kenya) Ltd Vs Muchina & Another (Civil Appeal 37 of 1978), (1980) eKLR, Blue Shield Insurance Company Ltd Vs Jospeph Mboya Oguttu (Civil Appeal No 262 of 2003) & Yaya Towers Limited Vs Trade Bank Limited (In liquidation), (Civil Appeal No 35 of 2000)** to emphasize on these points. 2. Further, the plaintiff pointed out that the suit filed was not frivolous vexatious or scandalous as they had raised poignant points detailing the particulars of alleged procurement irregularities in the purchase of the fire engine based on falsified documents, using a procurement process which contravened the **Anti-corruption and Economic Crimes Act, the Public Finance Management (county Governments) Regulation, 2015, and the Public Procurement and Asset Disposal Act**. The plaint also raised serious questions of legality, fraud, procurement irregularities and unlawful payment of public funds, which could not be termed as frivolous or vexatious. The same therefore could not be stuck out in limine as proposed. 3. Finally, it was also the plaintiff/respondent’s contention that the previous suit file and the present suit raised different and distinct, and therefore the issue of subjudice or abuse of the process of the court did not arise. The ODPP’s decisions to withdraw the criminal proceedings against the applicant too, had no bearing on their civil mandate to file asset recovery suits and Section **193 of the Criminal procedure Code** also expressly provided that Civil and criminal proceedings could run concurrently. They strongly urged the court not to grant the order sought as it would unfairly curtail their right to fair hearing as espoused under **Article 50(1) of the Constitution**. Reliance was placed in **Ricard Ncharpi Leiyagu Vs Independent Electoral and Boundaries Commission & 2 Others. (Civil Appeal No 18 of 2013)** for emphasis. 4. They thus urged the court to dismiss the said Application. 5. **ANALYSIS AND DETRMINATION** 6. I have carefully considered the Application, its supporting affidavit, the response filed thereto and the comprehensive submission filed by the parties’ respective counsels. The only issue which arises for determination is whether proper grounds have been advanced to allow this court to strike out this suit based on grounds that the *proceedings have no legitimate legal basis, scandalous, frivolous and an abuse of the court process* and/or that *for lack of a legitimate legal basis, lacking in bona fides, and intended to harass the defendant* as pleaded in the said application 7. **Order 2 Rule 15 of the Civil Procedure Rules** deals with striking out of pleadings provides as follows; ***Rule 15. (1) At any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that—*** * 1. ***It discloses no reasonable cause of action or defence in law; or*** 2. ***It is scandalous, frivolous or vexatious; or*** 3. ***It may prejudice, embarrass or delay the fair trial of the action; or*** 4. ***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 subrule (1) (a) but the application shall state concisely the grounds on which it is made.** 1. In the case of ***Jubilee Insurance Company Limited v Grace Anyona Mbinda [2016] eKLR***, the Court quoted with authority the celebrated case of ***Saudi Arabian Airlines Corporation V Premium Petroleum Company Ltd [2014] eKLR*** where it was held that: ***“I need not re-invent the wheel on the subject of striking out a defence. A great number of judicial decisions have now settled the legal principles which should guide the Court in determining whether to strike out a pleading. The power to strike out a suit or defence should be used sparingly and only on the clearest of cases where the impugned pleading is “demurer of something worse than a demurer” beyond redemption and not curable by even an amendment. Thirdly, in case of a defence, the court must be convinced upon looking at the defence, that it is a sham; it raises no bona fide triable issue worth a trial by the court. And a triable issue need not be one which will succeed but one that passes the SHEDRIDAN J Test in PATEL V E.A. CARGO HANDLING SERVICES LTD. [1974] E.A. 75 at p. 76 (Duffus P.) that “… a triable issue… is an issue which raises a prima facie defence and which should go to trial for adjudication.” Therefore, on applying the test, a defence which is a sham should be struck out straight away.”*** 1. Similarly in the case of **D.T. *Dobie & Company (Kenya) Ltd. –vs- Muchina (1982) KLR*** 1 the court stated as follows: ***“…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...” Also* see** ***National Social Security Fund Board of Trustees v Protection Custody Limited (Civil Appeal E311 of 2021) [2024] KEHC 2549 (KLR).*** 1. Finally, in the Court of Appeal in the case of ***Crescent Construction Co. Ltd Vs Delphis Bank Ltd (2007) eKLR*** the said court discussing the same issuestated thus: - ***“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-honoured 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.”*** 1. On the face of the application under consideration, the applicant seeks for orders that the court be pleased to declare these proceedings have no legitimate legal basis, are scandalous frivolous and constitute an abuse of the court process. It was his further prayer that this suit be struck out for lack of legitimate legal basis, lacking in bona fides and is intended to harass the defendants. 2. The 5th defendant on the grounds, advanced on the face of the said application and its supporting affidavit, waxed eloquent enumerating their tribulation at the hand of the plaintiffs, with respect to investigation being carried out for supply of fire engines to the county of Isiolo and Marsabit. As a result, they had been subjected to constant intimidation, harassment and prosecution from 2019, instances which were enumerated at length in his affidavit and further emphasized that the said acts were done without legitimate legal/factual foundation, through misuse of authority to achieve extraneous purposes unconnected with upholding the rule of law. The cumulative effect was that the plaintiff’s actions were unlawful, constituted an unconstitutional harassment of the defendant’s rights contrary to **Article 27,47, and 50 of the Constitution of Kenya 2010** and thus prayed that the suit be struck out on the said basis. 3. To succeed in an application brought under **Order 2 Rule 15(i),(b) of the Civil Procedure Rules**, it was incumbent upon the applicant to show how the pleadings filed are scandalous, frivolous and/or vexatious. In the case of ***Mpaka Road Development Vs Kana (2004) 1 EA 161,*** Ringera J (As he was then) succinctly stated that; ***“A matter would only be scandalous frivolous or vexatious, if it would not be admissible in evidence to show the truth of any allegation in the pleading which is sought to be impugned, for example imputation of character where character is not an issue. A pleading is frivolous if it lacks seriousness, it would be vexatious, if it annoys or tends to annoy. It would annoy if it is not serious or contains scandalous matter, irrelevant to the action or defence. A scandalous and/or frivolous pleading is ipso facto vexatious.”*** 1. The applicant on the face of the application filed and in the supporting affidavit has not shown how the plaint filed is frivolous, scandalous, vexations and/or how it constitutes an abuse of the process of the court. He has amplified the “*immense suffering*” they have endured in hands of the plaintiffs’ agents’ due to ceaseless investigation, various cases filed both Civil and criminal in relation to the supplies made to the two counties, which when wholesomely considered, constitutes unconstitutional harassment and an infringement of their fundamental rights, which undoubtedly was contrary to **Article 27,47 and 50 of the Constitution of Kenya 2010**. I do reiterate that these grounds are irrelevant considerations to the matters at hand and cannot be used to support issuance of the orders sought. 2. In their submission’s filed to support this application, the applicant and the other defendants bring up the issue of this suit being used to re litigate and re-open **Marsabit HCCC No 3 of 2020; Drescoll Limited vs Marsabit County Government**, where they had obtained a valid judgment and that the law does not allow a collateral attack on the said decision. To that extent this suit constituted an abuse of the process of the court and prayed that it be struck out. Again, the court must painfully point out to the applicant that, he did not plead to this fact, and it is trite law that submissions are not pleadings, which the court can rely on. See **CMC Aviation Ltd. vs. Cruisair Ltd. (No.1) [1978] klr 103; [1976-80] 1 klr 835 & Robert Ngande Kathathi v Francis Kivuva Kitonde [2020] eKLR.** 3. Secondly, the plaintiff/ respondent averred that the issues raised herein are distinct and different from the issues raised in **Marsbait HCC NO 3 of 2020**, and that they must have their day in court to prove their allegation. The applicant failed to controvert this averment and could only do so by filing the pleadings, copy of proceedings and a copy of the judgment obtained in the prior suit to enable the court determine this issue in limine. Again, this was not done, and the court is left grasping at straws. 4. Further, on prayer (3) even if the court were to stetch the meaning of ***lacking legitimate legal basis, lacking bona fides and is intended to harass the defendants***, it would still be grounded under **Order 2 Rule 15(1),(a) of the Civil Procedure Rules** which provides that pleadings disclose no reasonable cause of action or defence in law. To prove the same, the grounds raised must concisely bringing to the fore the basis of striking out and no evidence is admissible to prove the same. **See Order 2 Rule 15(2) of the Civil Procedure Rules**, which is clear on this proposition. The applicant breached this rule and filed his comprehensive supporting affidavit, which in inadmissible, and secondly as already alluded to above, this issue could only be determined based on full disclosure of the pleadings filed. ***See Kundulal Restaurant Vs Davshi and Co (1952) 19EACA and Hasmani Vs Bandeau Congo Belge (1938) 5 EACA 89.*** 5. **DISPOSTION** 6. The upshot, having considered the relevant legal parameters of striking out pleadings, I do find that the 5th defendant/applicant, application dated 3rd December 2025, lacks merit and the same is dismissed with costs to the Plaintiff/Respondent. 7. It is so ordered. Ruling **written, dated** and **signed** at **MARSABIT** this **23rd** day of **July, 2026.** **FRANCIS RAYOLA OLEL** **JUDGE** **Delivered** on the **virtual platform, Teams** this **23rd** day of **July 2026.** **In the presence of;** Ms Akoko ………………..……. for Plaintiff Ms Ahono ………. for 1st and 2nd Defendant Mr. K. Murgor………for 5th to 8th Defendant Ms Gekone ……….……. for interested party Mr. Jarso ……………………. Court Assistant