[2022] KEHC 15110 (KLR)

Kimanthi v Kenindia Assurance Co. Ltd & another (Civil Case E119 of 2021) [2022] KEHC 15110 (KLR) (Civ) (3 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15110 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Case E119 of 2021

DO Chepkwony, J

November 3, 2022

Between

Mary Nduku Kimanthi

Plaintiff

and

Kenindia Assurance Co. Ltd

1st Defendant

Trident Insurance Co. Ltd

2nd Defendant

Ruling

1. There are two applications pending determination in this suit. The first application is dated December 16, 2021 whilst the second one is dated 14th March, 2022 and are both filed by the Plaintiff/Applicant seeking the court to strike out the statement of defence dated June 25, 2021 and January 27, 2022 filed by the 1st and 2nd Defendants/Respondents respectively for being scandalous, frivolous, vexatious, a delay to fair trial and an abuse of the court process. Thereafter, the Plaintiff seeks judgment to be entered against the Defendants/Respondents as sought in the Plaint and the Defendants be condemned to pay costs of the suit.

2. To save on judicial time, on March 14, 2022, this court directed that the two applications be canvassed jointly by way of written submissions.

3. The Plaintiff’s gravamen as expressed in the grounds adduced in support of the application and those listed in the Plaintiff’s affidavit sworn in support of the application on December 16, 2021 is that in the primary suit being HCCC No.393 of 2014, the Plaintiff obtained Judgment against the Defendants’ insured for Kshs.4,005,695. 95 and thus the Defendants herein are statutorily bound by virtue of Section 10 of the Insurance Motor Vehicles Third Party Risks Act Cap 405 Laws of Kenya, to compensate the same. That both Defendants were duly notified of the existence of the primary suit vide a statutory notice served upon them and indeed, the police abstract produced in court indicated the Defendants were the respective insurers of the Defendants in the primary suit. As such, it is the Plaintiff’s view that the statements of defence as filed contain mere denials meant to deny the compensation as awarded by the trial court.

4. The Defendants/Respondents opposed the applications and in doing so, the 1st Defendant filed a replying affidavit sworn by its legal officer, Lavender Achieng Mboss on June 8, 2022 whilst for the 2nd Defendant filed an affidavit sworn by Bridgit Aringo. For the first Defendant, it was averred that no statutory notice was issued as required in law and the annexed statutory notice contains a fraudulent stamp which does not emanate from the 1st Defendant. On the other hand, the 2nd Defendant deposited that its statement of defence contains triable issues which include; whether it insured the subject motor vehicle, whether it was served with the requisite notices were, and whether there was proof that the third defendant was his insured. According to the 2nd Respondent, those are issues to be addressed upon full trial.

5. The record further shows that all parties complied in filing their respective written submissions which I have also read through. Since they reflect each party’s summary case as produced above, I will not reproduce the same here.

Analysis and Determination 6. I have considered the applications at hand, the affidavits sworn in support and in rebuttal of the applications, the submissions made on behalf of the parties and the authorities relied on. The Key issues which arise for determination are:-a.whether the Defendant’s statements of defence should be struck out for raising non triable issues; and,b.whether Judgment should be entered for the Plaintiff as sought.

7. Order 2 Rule 15(1) of the Civil Procedure Rules dictates the circumstances under which the court may strike out a pleading. It provides as follows: -“At any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that—(a)it discloses no reasonable cause of action or defence in law; or(b)it is scandalous, frivolous or vexatious; or(c)it may prejudice, embarrass or delay the fair trial of the action; or(d)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.

8. It serves repetition to state that striking out of pleadings is a draconian act, which may only be resorted to, in plain cases. Whether or not a case is plain is in my view, a matter of fact to be arrived at upon considering the circumstances relating to the offending pleadings. This court is also minded that the power to strike out being, a discretionary one, should be exercised judiciously and with caution so as not to drive a party away from the seat of justice. It should be exercised in very clear cases where the pleading is plainly clear and untenable.

9. The same position is reiterated by the Court of Appeal in D.T. Dobie and Company (Kenya) Limited -vs- Muchina [1982]eKLR 1, where Madan J.A (as he then was) 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.” (Emphasis added)

10. It then follows that in considering an application to strike out pleadings, the court should avoid opinions on the merit of the case itself as it is solely an issue to be addressed upon full trial. It also has to be understood that a triable issue may not necessarily succeed after trial, but they still ought to be tried.

11. While considering whether the Statements of Defence filed in this case raise triable issues, my view is buttressed with the decision in the case of KCB –vs- Suntra Investment Bank Ltd [2015]eKLR, where the court observed the type of defences to be struck out in an application as the one at hand. It was stated thus:“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”

12. Without going into the merits of the case, I have read through the statements of defence filed by the 1st and 2nd Defendants respectively and they cannot be said not to raise triable issues. The issue of whether or not the Plaintiff/Applicant complied with Section 10 of the Insurance Motor Vehicles Third Party Risks Act Cap 405 on service of the requisite notice is a question to be answered only after the conduct of a full trial. And even if it is only one issue, it ought to go for trial. All the Defendant is supposed to show is that a defence on record raises triable issues which ought to go for trial and the triable issues raised do not mean a defence that must succeed (see Kenya Trade Combine Ltd –vs- Shah CA 193/99).

13. In addition, the issue of the Defendants not having been parties to the primary suit, they still ought to be given a day in court to state their case. Hence, having pointed out a bona fide issue raised in the defences, majorly on service of statutory notices, I am not persuaded that the defendants’ case is an abuse of the court process as the plaintiff intimated.

14. In the upshot, for the above-stated reasons, the applications dated December 16, 2021 and March 14, 2022 are hereby disallowed. The Plaintiff is directed to set down the case for directions before the Deputy Registrar through the Registry pursuant to Order 11 of the Civil Procedure Rules for expeditious disposal of the same. Costs of the two applications shall follow the cause.It is so ordered.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED IN NAIROBI THIS 3RD DAY OF NOVEMBER, 2022. D. O. CHEPKWONYJUDGEIn the presence of:M/S Esonga counsel for PlaintiffNo appearance for and by 1st Defendant/RespondentNo appearance for and by 2nd Defendant/RespondentCourt Assistant - Simon