[2005] KEHC 2843 (KLR)
The court held that the Defence raised substantive issues—namely, the truth of the words complained of and whether the publication was privileged—which are matters that can only be determined at the hearing upon presentation of evidence. As such, the threshold for striking out a pleading was not met, since the...
Source-derived case information.
- Citation
- [2005] KEHC 2843 (KLR)
- Parties
- Applicant: Josephat R. Amwayi; Respondent: Kenya Pipeline Co. Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 1289 of 2004
- Procedural Posture
- Civil Suit / Ruling on Striking Out Application
- Outcome
- Application dismissed with costs to the respondent.
- Legal Topics
- Striking Out Pleadings, Defamation, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Josephat R. Amwayi
Applicant
Kenya Pipeline Co. Ltd
Respondent
Procedural Posture
Civil Suit / Ruling on Striking Out Application
Legal Issues
- 1 Whether the Defence should be struck out as scandalous, frivolous, vexatious, or an abuse of the court process.
- 2 Whether the Defence raises triable issues that require determination at trial.
Ratio Decidendi
The court held that the Defence raised substantive issues—namely, the truth of the words complained of and whether the publication was privileged—which are matters that can only be determined at the hearing upon presentation of evidence. As such, the threshold for striking out a pleading was not met, since the Defence was not plainly scandalous, frivolous, or vexatious on its face. The application to strike out the Defence was therefore dismissed as lacking merit.
Court Disposition
Application dismissed with costs to the respondent.
Orders
- The application to strike out the Defence is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIORBI CIVIL SUIT NO. 1289 OF 2004
JOSEPHAT R. AMWAYI ………………………………..PLAITNIFF/APPLICANT
VERSUS THE MANAGING DIRECTOR KENYA PIPELINE CO. LTD ………….…..1ST DEFENDANT/RESPONDENT KENYA PIPELINE CO. LTD ……..…….. 2ND DEFENDANT/RESPONDENT RULING The Applicant seeks to strike out the Defence herein on the grounds that it is scandalous, frivolous and vexatious and an abuse of the process of the court.
For the Applicant Mr. Omari submitted that on a reading of the contents of the Supporting Affidavit and further affidavit sworn by the Applicant in support of this application, it can be seen that the publication was made in bad faith as the facts contained therein are not true.
To strike out a pleading is a drastic action, which is only exercised, in a clear case (see D.T. Dobie & Co. (Kenya) Ltd versus Muchina (1982) KLR page 1.
The Defence filed raises two issues namely: 1. That the words complained of were true and
2. That the words complained of were published on an occasion which was privileged. Whether or not these Defences can be sustained is a matter to be determined at the hearing of this suit and on evidence being adduced.
In the result I find no merit in the Application, which is dismissed with costs to Respondent.
Dated and delivered at Nairobi this 19th day of May, 2005 P.J. RANSLEY
JUDGE