[2012] KEHC 741 (KLR)
The court found that the defendant's amended defence raises arguable and triable issues, particularly the allegation of fraud in the acquisition of the suit land by the plaintiff. The court emphasized that striking out pleadings is a drastic measure reserved for clear cases where the pleadings are hopeless or an...
Source-derived case information.
- Citation
- [2012] KEHC 741 (KLR)
- Parties
- Plaintiff: John Muriithi Kariuki; Defendant: Charles Kariuki Kingori alias Kagika
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Case 69 of 2010
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Defence and Counterclaim
- Outcome
- application dismissed with costs to the respondent
- Judges
- J Wakiaga
- Legal Topics
- Striking Out Pleadings, Capacity to Sue, Fraud in Land Title, Triable Issues
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
John Muriithi Kariuki
Plaintiff
Charles Kariuki Kingori alias Kagika
Defendant
Procedural Posture
Civil Case / Ruling on Application to Strike Out Defence and Counterclaim
Legal Issues
- 1 Whether the defendant's statement of defence and counterclaim should be struck out for lack of capacity and for being frivolous or vexatious.
- 2 Whether the defence raises triable issues that should proceed to full trial.
Ratio Decidendi
The court found that the defendant's amended defence raises arguable and triable issues, particularly the allegation of fraud in the acquisition of the suit land by the plaintiff. The court emphasized that striking out pleadings is a drastic measure reserved for clear cases where the pleadings are hopeless or an abuse of process. Since the defence is not plainly hopeless and the issue of fraud requires evidence to be tested at trial, the application to strike out the defence and counterclaim lacks merit. The court therefore dismissed the application, allowing the matter to proceed to full hearing.
Court Disposition
application dismissed with costs to the respondent
Orders
- The plaintiff's application to strike out the defence and counterclaim is dismissed with costs to the respondent.
- Parties to fix the suit for hearing before the relevant court.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
High Court at Nyeri
Civil Case 69 of 2010 [if gte mso 9]><xml>
Normal 0
false false false
EN-GB X-NONE X-NONE
</xml><![endif][if gte mso 9]><![endif][if gte mso 10]> <style> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-style-parent:""; text-autospace:ideograph-other; font-size:12. 0pt;"Liberation Serif","serif"; mso-fareast-"WenQuanYi Micro Hei";} </style> <![endif]
JOHN MURIITHI KARIUKI.................….….........……...........…PLAINTIFF
Versus
CHARLES KARIUKI KINGORI alias=KAGIKA………....…DEFENDANT
RULING
This is an application by the plaintiff/applicant in which the same seeks that the statement of defence and counter claim be struck out and judgment be entered in terms of the plaint.
It is supported by the affidavit of the plaintiff in which the same deponed that the defendant's case is technically invalid as the same does not have capacity to bring a suit or take up the purported defence of the deceased Martha Wangari Kagondu without proper letters of administration.
The application is opposed by the respondent on the ground that the same has a valid defence since the evidence before the lower court shows that the applicant committed fraud in obtaining title to the suit land.
The principles for striking out of pleadings are now well settled and need not be said as was stated by the court of appeal in FREMAR CONSTRUCTION CO. LTD vs MINAKHSI NAVIN SHAH - NAIROBI CIVIL APPEAL NO. 85 OF 2005.
“This court has stated many times before and the learned judge of the superior court was conscious of it, that striking out of pleadings is a drastic remedy and the powers of the court are to be exercised with great caution and only in clear cases. But the power is clearly donated in the rules and exists inherently for the court in the interest of justice, to reject manifestly frivolous and vexatious pleadings and suits and to protect itself from abuse of its powers”.
I have looked at the defendant's defence herein and is of the view that it raises arguable issues which ought to be ventilated upon at the full trial. They can only be proved and disapproved by or through evidence and as was stated in the case of DT DOBIE & CO. (KENYA)LTD VS MUCHINA (1982)KLR1
“No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no cause or reasonable cause of action and is so weak as to be beyond redemption and incurable by amendment. If a suit shows some semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward.”
I have noted that the defendant has amended his defence herein appropriately and to my mind the issue of fraud as pleading is a triable issue which ought to go on trial and which therefore render the defend not hopeless.
In the final analysis I therefore find no merit on the applicant's application herein and dismiss the same with cost to the respondent.
This being a land matter parties to fix the suit down for hearing before the relevant court.
Dated and delivered at Nyeri this 6th day of December 2012.
J. WAKIAGA
JUDGE
Mr. Ng'ang'a for Mr. Nderi for Plaintiff
Mr. Gichuki for Mr. K. Wachira for Defendant.
J. WAKIAGA
JUDGE