https://new.kenyalaw.org/akn/ke/judgment/scc/2026/138

Kisiwa Travel and Tours Ltd v Kismat Auto Fabricators (Commercial Case E423 of 2026) [2026] SCC 138 (KLR) (30 June 2026) (Ruling) Neutral citation: [2026] SCC 138 (KLR) Republic of Kenya In the Small Claims Court at Mombasa Commercial Case E423 of 2026 TN Mwangeka, RM June 30, 2026 Between Kisiwa Travel and Tours Limited Claimant and Kismat Auto Fabricators Respondent Ruling 1.This ruling relates to grounds of opposition dated 15th June 2026 in which the Respondent seeks the Claim to be struck out for being hopeless as it discloses no reasonable cause of action against the Respondent. The application is opposed by the Claimant who filed written submissions dated 22nd June 2026 which this court has considered. 2.Whether or not a court should strike out a suit is a discretionary power. In doing so courts are reminded that striking out of a suit and/or pleading is a draconian and drastic measure which should be resorted to with caution, sparingly and out of necessity. It is only in instances where a pleading cannot be salvaged by an amendment that Courts will utilize this procedure. This position was elucidated by the Court in the case of Geminia Insurance Co. Ltd v Kennedy Otieno Onyango [2005] KEHC 374 (KLR). 3.The Court of Appeal in the case of Yaya Towers Limited v Trade Bank Limited (In Liquidation) [2000] KECA 427 (KLR), had the opportunity to address itself on the issue, and made the following observation: -“A plaintiff is entitled to pursue a claim in our Courts however implausible and however improbable his chances of success. Unless the defendant 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. In Lawrence v Lord Norreys (1890) 15 App Cas 210 at 219, Lord Herschell said: - “It cannot be doubted that the Court has an inherent jurisdiction to dismiss an action which is an abuse of the process of the court. It is a jurisdiction which ought to be sparingly exercised, and only in very exceptional cases. I do not think its exercise would be justified merely because the story told in the pleadings was highly improbable, and one which it was difficult to believe could be proved.” 4.Presently, the Respondent submits that the subject matter in question, arose from a dispute that the Respondent herein is not a party and not privy to and subsequently the same is subjected to the provisions of Order 2 Rule 15 making the suit hence the Claimant suit dated 5th of October, 2022 should be struck out with costs to the Respondent as the same is incompetent, fatally defective, bad in law and an abuse of the court process. 5.In the other hand the Claimant states that as of 22nd June, 2026 the Claimant had amended its Amended Statement of Claim dated 5th May, 2026 and had filed the further Amended Statement of Claim dated 16th June, 2026 and filed on 18th June, 2026. This was pursuant to this court orders issued on 17th June, 2026 which allowed the Claimant to further amend its claim. The parties to the suit are therefor Hamisi Said Ranzuga T/a Kismat Shutle Services as the 1st Respondent and Hamisi Said Ranzuga T/a Kismat Auto Fabricators as the 2nd Respondent. 6.As rightly submitted by the Claimant, in John Musakali –vs- speaker county of Bungoma & 4 others (2015) eKLR, the court held that:- “The position in law is that a preliminary objection should arise from the pleadings and on the basis that facts are agreed by both sides. Once raised the preliminary objection should have the potential to disposing of the suit at that point without the need to go for trial. If, however, facts are disputed and remain to be ascertained, that would not be suitable preliminary objection on a point of law.” 7.In the present case, whether or not the Respondents are correctly sued is a matter better placed to be canvassed through full trial. 8.Consequently, the grounds of opposition are disallowed, with no orders as to costs. DATED SIGNED AND READ VIRTUALLY AT MOMBASA THE………30TH …. DAYOF………JUNE………2026HON. THERESA N. MWANGEKARESIDENT MAGISTRATE/ADJUDICATORIn the presence of;…Mr. Maithya…..Claimant;…Mr. Oyas…for RespondentC/A Esther