[2023] KEHC 25377 (KLR)

Kwacha Group of Companies v Vending Services (Civil Appeal 154 of 2019) [2023] KEHC 25377 (KLR) (Civ) (17 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25377 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 154 of 2019

DAS Majanja, J

November 17, 2023

Between

Kwacha Group of Companies

Appellant

and

Vending Services

Respondent

(Being an appeal from the Ruling and Order of Hon. E. K. Usui, SPM dated 25th February 2019 at the Magistrates Court at Nairobi, Milimani in Civil Case No. 6314 of 2018)

Judgment

1. This is an appeal from the ruling dated 25. 02. 2019 in which the trial magistrate allowed the Respondent’s application to strike out the defence under Order 2 Rule 15(1) (a) and (c) of the Civil Procedure Rules. The trial magistrate after setting out the principles for striking out in Tom Odhiambo Achilla t/a Achilla T.O. and Co. Advocates v Kenneth Wachira Akide t/a Akide and Co. Advocates and others [2015] eKLR stated as follows:I have read out the Plaint and the Defence filed in court. I have also read the counter-claim between the parties prior to filing the suit. I am satisfied that the defendant’s defence is confused of mere denial circuses to triable issues. The application has merit. It is allowed as prayed.

2. The thrust of the Appellant’s Memorandum of Appeal dated 21. 05. 2019, is that the Ruling is devoid of substance, does not set the legal and factual basis and the analysis leading to the decision this resulting in a miscarriage of justice. The parties have filed written submissions in the matter which I have considered.

3. It is not in dispute that power to strike out a claim is drastic and must be exercised with great circumspection. This is the Court of Appeal has stated many times. In D.T. Dobie & Company (Kenya) Ltd v Muchina [1982] KLR 1 it expressed the view that: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.

4. In deciding whether to strike out the suit, the Court is required to examine the pleadings; the Plaint and Defence together with depositions in support of and in opposition to the application to strike out in order to determine whether there is a triable issue.

5. In this case, it is not apparent from the Ruling that the trial magistrate considered the Respondent’s claim and the Appellant’s statement of defence. A perusal of the plaint dated 02. 07. 2018 shows that the Respondent’s claim was for goods sold and delivered. The Respondent claimed Kshs 520,026. 00 with interest at commercial rates. In the defence dated 17. 08. 2018, the Appellant denied that it owed Kshs 520,026. 00. It averred that the services and goods were neither rendered nor delivered and that there was no factual basis for the claim.

6. The Respondent lodged the Notice of Motion dated 05. 09. 2018 seeking to strike out the defence. The application was supported by the affidavit of Neel Shah sworn on 02. 07. 2018 comprising statements of account, credit application form and emails. The Appellant filed grounds of opposition dated 08. 01. 2018 stating that the defence had triable issues. Unfortunately, the trial magistrate failed to engage with the pleadings and documents as it is difficult to know how the court came to the conclusion that those were not triable issues.

7. The fundamental rule governing decisions of any trial is that the ultimate decisions must set out reasons for the conclusion. The trial magistrate failed to explain why she came to the conclusion that the defence is comprised of mere denials and raises no triable issues. The duty to provide reasons is not only a function of due process but also abides by the rules of natural justice, particularly the right to a fair hearing which demands that parties know without any doubt why they won or lost, as without any reasons a losing party will not be able to know whether the court has misdirected itself and make a decision on whether they have a chance on appeal (see Flanner v Halifax Estate Agencies Ltd (2000) ALL ER 27, Mufrank Builders Limited v Kiriti Women Transport And Housing Co-Operative Society [2015] eKLR and Hellen Wangari Wangechi v Carumera Muthoni Gathua [2015] eKLR).

8. The duty to provide reasons is found in Order 21 Rule 4 of the Civil Procedure Rules which expressly provides that judgments “shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision.” This position was affirmed by the Court of Appeal in Judicial Service Commission v Ndururi [2021] KECA 365 (KLR).

9. The Ruling appealed from was devoid of any reasons for the conclusion reached by the trial magistrate. In the circumstances, I allow the Appeal and order as follows:a.The Ruling and Order dated 25. 02. 2019 is set aside and substituted with an order dismissing the Respondent’s application dated 05. 09. 2018. b.The Respondent shall bear the costs of this Appeal assessed as Kshs 20,000. 00. c.The suit, Milimani CMCC No 6314 of 2018, be and is hereby transferred to the Milimani Small Claims Court for hearing and determination.

DATED AND DELIVERED AT NAIROBI THIS 17TH DAY OF NOVEMBER 2023. D.S. MAJANJAJUDGEMr Osiemo instructed by Osiemo Wanyonyi and Company Advocates for the Appellant.Ms Letuya instructed by Conrad Maloba and Associates Advocates for the Respondent.