[2023] KEELC 488 (KLR)

GC Residential Limited v Directline Assurance Company Limited & another; Kenya Revenue Authority (Interested Party) (Environment & Land Case E134 of 2022) [2023] KEELC 488 (KLR) (26 January 2023) (Ruling)

Neutral citation: [2023] KEELC 488 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Case E134 of 2022

EK Wabwoto, J

January 26, 2023

Between

Gc Residential Limited

Plaintiff

and

Directline Assurance Company Limited

1st Defendant

Direct Line Investment Limited

2nd Defendant

and

Kenya Revenue Authority

Interested Party

Ruling

1. This ruling is in respect of the 2nd defendant’s notice of motion dated June 14, 2022. The application seeks the following orders:i.That the suit by the Plaintiff against the 2nd Defendant be struck out for want of disclosing a cause of action against it.ii.That the costs of this application be borne by the Plaintiff.

2. The Application is premised on nine (9) grounds outlined in support of the application.

3. The Application was supported by the 1st Defendant but was opposed by the Plaintiff. In opposition to the application, the plaintiff filed a Replying Affidavit sworn by Ravindranath Santosh Kumar on 11th July 2022 and grounds of opposition dated on the same date.

4. The application was canvased by both written and oral submissions that were made by counsel for the parties. During the plenary hearing of the application, Learned Counsel Mr. Muthui and Ms. Kamau made oral submissions on behalf of the Plaintiff while Learned Counsel Ms. Orenge submitted on behalf of the 1st and 2nd Defendants.

5. It was the Defendants submission that the Plaint filed herein discloses no cause of action against the 2nd Defendant and thus ought to be struck out as against the 2nd Defendant. It was also argued that no prayers have been sought as against the 2nd Defendant and it would be unjust to keep in court a party without no cause of action against them.

6. It was contended that the agreement between the Plaintiff and the 1st Defendant does not include the 2nd Defendant at all and that the 2nd Defendant has been dragged to the suit on account of the fact that 1st Defendant intended to have them as their nominee. According to the 2nd Defendant, it was argued that this does not vary the contract between the Plaintiff and the Defendant as it does not change the terms of payment neither does it go to the root of the contract and whoever that the 1st Defendant appointed as a nominee assumes no contractual obligation to the vendor. Reliance was made to the case of Savings & Loan (K) Limited vs Kanyenje Karangatia Gakombe & Another (2015) eKLR in support of the said position.

7. Counsel for the Plaintiffs while opposition the said application submitted that the Plaint discloses reasonable cause of action against both defendants and further that the 2nd Defendant’s introduction to the transaction was orchestrated by the 1st Defendant a position which will be demonstrated during trial. further submitted that the issue of spousal consent having been raised by the defendants was immaterial and cannot amount to a triable issue. It was also argued that there is express written correspondences from the 1st Defendant (through its Legal Counsel) asking the Plaintiff to prepare 18 leases in favour of the 2nd Defendant and the stamp duty in respect to the same has bot been paid. It was contended that to allow the 2nd Defendant’s removal from the suit would be tantamount to condemning the Plaintiff unheard since 18 of the leases in respect of which stamp duty has not been paid and in the name of and signed by the 2nd Defendant.

8. It was the Plaintiff’s contention that the Plaint raised serious triable issues and that before striking out the same, the Court ought to look at the pleadings and documents on record and consider whether it is worth a hearing. Counsel further referred to paragraphs 5, 6, 9, 10 and 11 of the 2nd Defendant’s Defence and reiterated that it undeniable that there exists a cause of action against the 2nd Defendant. The court was urged to dismiss the application and allow the matter to proceed for full trial.

9. I have considered the application, the supporting grounds and those in opposition. I have also considered the oral and written submissions by parties and the decisions relied on. The applicant has moved this court under order 2 rule 15 (1) (a) of the Civil Procedure Code and sections 1A, 1B and 3A of the Civil Procedure Act to strike out the Plaintiff’s suit against the 2nd Defendant. The rule provides that a party may at any stage of proceedings apply to strike out pleadings for disclosing no reasonable cause of action; being scandalous, frivolous or vexations; for being prejudicial or embarrassing or for being an abuse of the court process.

10. The jurisdiction to strike out pleadings is discretionary and must be exercised judicially. In Postal Corporation of Kenya v I .T Inamdar & 2 Others [2004] 1 KLR 359, the court stated that the law is now well settled that if the defence filed by a defendant raises even one bona fide triable issue, then the defendant must be given leave to defend.

11. InOlympic Escort International Co. Ltd. & 2 Others v. Parminder Singh Sandhu & Another [2009] eKLR, the court opined that a triable issue is not necessarily one that a party would ultimately succeed on but it need only be bona fide.

12. In The Co-Operative Merchant Bank Ltd. v George Fredrick Wekesa (Civil Appeal No. 54 of 1999) the Court of Appeal stated:“Striking out a pleading is a draconian act, which may only be resorted to, in plain cases...Whether or not a case is plain is a matter of fact...Since oral evidence would be necessary to disprove what either of the parties says, the appellant’s defence cannot be said to present a plain case of a frivolous, scandalous, vexatious defence, or one likely to prejudice, embarrass or delay the expeditious disposal of the respondent’s action or which is otherwise an abuse of the process of the court”.

13. In Yaya Towers Limited v Trade Bank Limited (In Liquidation) (Civil Appeal No. 35 of 2000) the same court expressed itself thus:“A plaintiff (defendant) is entitled to pursue a claim in our courts however implausible and however improbable his chances of success. Unless the defendant (plaintiff) 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...It cannot be doubted that the Court has inherent jurisdiction to dismiss that, which is an abuse of the process of the Court. It is a jurisdiction, which ought to be sparingly exercised and only in exceptional cases, and its exercise would not be justified merely because the story told in the pleadings was highly improbable, and one, which was difficult to believe, could be proved”.

14. Similarly, inD.T. Dobie & Company Kenya Limited v Joseph Mbaria Muchina & Another [1980] eKLR, Madan JA, stated:“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”.

15. In the instant case, it is evident that the Plaint raise triable issues against the 2nd Defendant that must be determined by this court. The 2nd Defendant field its Defence dated 14th June 2022 in response to the Plaint filed herein. The Defence was in response to the triable issues raised by the Plaintiff against the 2nd Defendant, these issues were in response to the privity of contract between the Plaintiff and the 2nd Defendant in respect to the lease over the 18 apartments, whether the 2nd Defendant executed and transmitted 18 leases to the Plaintiff via its legal representatives and ultimately whether the leases are binding to the 2nd Defendant and whether the stamp duty costs have been paid in order to have the leases registered.

16. Applying the principles in the decisions cited above to the present circumstances and the application before this court and further having perused the Plaint and considering the reliefs sought therein, it is evident that striking out the same without hearing the parties would be draconian since the same discloses triable issues that can only be determined after trial. Taking all the above into account, I do not consider this to be a proper case for striking out the Plaintiff’s suit against the 2nd Defendant.

17. The upshot of the above is that the Notice of Motion dated 14th June 2022 is devoid of merit. It is accordingly dismissed with costs to the Plaintiff.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 26THDAY OF JANUARY 2023E. K.WABWOTOJUDGEIn the presence of: -Ms. Kamau h/b for Mr.Muthui for the Plaintiff.Ms. Achieng h/b for Ms. Orenge for the 1st& 2nd Defendants.Mr. Nyandieka h/b for Mr. Opondo for the Interested party.Court Assistants; Caroline Nafuna and Philomena Mwangi.