[2022] KEHC 9771 (KLR)

Kyalo & 2 others v Muthama & 8 others (Commercial Case E001 of 2021) [2022] KEHC 9771 (KLR) (21 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9771 (KLR)

Republic of Kenya

In the High Court at Machakos

Commercial Case E001 of 2021

GV Odunga, J

July 21, 2022

Between

Chris Kyalo

1st Plaintiff

Edward Musau

2nd Plaintiff

Masila Kivaya (Suing on behalf of Officials of Kangundo Town Business Community)

3rd Plaintiff

and

Stephen Muthama

1st Defendant

Josephine Nthenya Peter

2nd Defendant

Alexander Mutisya

3rd Defendant

Esther Ndinda

4th Defendant

Janet Phillip

5th Defendant

Joseph Kitonyi Kitonga

6th Defendant

Leonard Kimeu Ndeti

7th Defendant

Elizabeth Ndunge

8th Defendant

Rositica Mulungye

9th Defendant

Ruling

1. By an Originating Summons dated 31st August,2021, filed under Certificate of Urgency and premised on Article 163(4)(a) of the Constitution, Order 50 Rule 1, Order 40(1) and (2), Order 46 of the Civil Procedure Rules and the inherent Powers of this Court, the Respondents herein suing as the Plaintiffs in person sought a temporary injunction restraining the Applicants herein who are sued as the Defendants acting by themselves and/or agents from conducting the official duties and/or transacting any business on behalf of the Kangundo Town Business Community, a non-registered Community Based Organization pending the hearing and determination of this suit.

2. According to the Respondents, the Applicants herein have staged a coup in leadership of the Community Based Organization and replaced them, the duly elected officials without public participation and against the Constitution of the organization. It was averred that the Respondents have asserted that the community affairs are at risk as the same have been illegally taken over by non-elected officials leaving the business community in total confusion that will lead to them suffering an irreparable loss unless the court intervenes.

3. Vide the Notice of Motion dated 8th November, 2021 premised on Order 2 Rule15(1)(b) and (d) of the Civil Procedure Rules, 2010, the Applicants sought orders that the Respondents Originating Summons be struck out with costs to the Defendants/Applicants.

4. The application was supported by the supporting affidavit of Stephen Muthama sworn on even date. According to the deponent, the four Plaintiffs/Respondents merely constitute a third of the purported office bearers out of the eleven (11) officials and therefore lack the quorum. He averred that in any case the Plaintiffs/Respondents term in office expired on 8/03/2021, fresh elections were held later and new office bearers put in. According to the deponent, the Plaintiffs/Respondents cannot challenge the elections and/or the leadership of the new office bearers in the manner sought in the Originating Summons hence the Originating Summons ought to be dismissed and/or struck out with costs to the Defendants/Applicants.

5. On behalf of the Applicants, it was submitted that the only issue for determination is whether the Originating Summons dated 31/08/2021 discloses a reasonable cause of action. Firstly, it is submitted that the provisions of law quoted and the orders sought do not fall under the ambit of the Originating Summons and does not raise any and/or any reasonable cause of action against the Applicants herein or at all.

6. According to the Applicants, Chris Kyalo, the 1st Plaintiff/Respondent has not attached any authority to make the averments on his behalf and on behalf of the other Respondents in his affidavit in support of the Originating Summons and his replying affidavit both sworn by him on 31/08/2021 and 14/04/2022 respectively. It was submitted that the wording of the said affidavits clearly confirm that Chris Kyalo is speaking for himself and not on behalf of any entity or other individuals. It was submitted that there is no document signed by the members confirming that they are part of the Originating Summons.

7. It was further submitted that since Kangundo Town Business Community is a non-registered entity, its members can only sue in their names and must append their signatures to the court papers hence the Respondents herein do not have the requisite representative capacity. In addition, it was submitted that a non-existence entity does not have the capacity to sue or be sued and reliance was placed on the case of Elijah Sikona & George Pariken Narok on behalf of Trusted Society of Human Rights Alliance vs. Mara Conservancy & 5 Others [2014] eKLR.

8. It was submitted that the 1st Respondent deposed in his replying affidavit that 11 officials were elected to run the affairs of the group but it is only the four (4) Plaintiffs/Respondent who have sued which according to the Applicants show a clear lack of quorum. According to the Applicants, the court should note that the Respondents have not procured authority and/or consent to bring the suit on behalf of the office bearers and/or purported members of the alleged organization.

9. According to the Applicants, the Respondents cannot purport to bring the case on behalf of the alleged 684 members when they are not the new office bearers put in and in addition, the Respondents cannot challenge the elections and/or leadership of the new office bearers through and Originating Summons but through a Petition and/or a Plaint so that the issues raised may be canvassed at length, procedurally and on merit.

10. Based on the above, it was submitted that the Plaintiffs/Respondents have no locus standi to lodge the suit and purport to act on behalf of Kangundo Town Business Community Organization. Reliance was placed on the case of David Kamau Njoroge (Deceased) v Savings and Loan(K) Limited, Nairobi Milimani HCCC No. 629 of 2005 that a suit instituted by a person who has no capacity or locus to institute it, is a non-suit and is null and void.

11. According to the Applicants, Originating Summons are filed where there is a straightforward and not complex issue(s) to be canvassed hence the prayers seeking revocation of appointment of office bearers, deregistration of the Defendants/Applicants, calling fresh elections cannot issue in the circumstances. The order seeking restoration of MCA Moses Musyoka and his associates to restore the 1st Plaintiff/Respondent removed sign board cannot be canvassed without joining them as parties in this suit.

12. Based on the foregoing, the Applicants submitted that the Originating Summons is scandalous since it is brought by persons who purport to be litigating on behalf of a non-registered entity and purport to be office bearers when their term is long expired. According to the Applicants, the suit is frivolous as it has no substance. In addition, the suit is fanciful and would waste the courts time to file a defence and canvass baseless issues as there are no reasonable grounds advanced. According to the Applicants, the suit is vexatious for it has no foundation but only brought in as a form of revenge by the Respondents for being ousted out of office.

13. According to the Applicants, canvassing the pleadings herein would only lead to prejudice, embarrass or delay justice since the Originating Summons is ambiguous and unintelligible. Reliance was placed on the case of Madison Insurance Company Limited vs. Augustine Kamanda [2020] eKLR at paragraph 13-21 thereof.

Respondents’ Case 14. On behalf of the Respondents, it is submitted that under Article 22 of the Constitution, any person has a right to institute civil proceedings in particular at sub-article 2(b) which provides for institution of a court proceedings by a person acting as a member of, or in the interest of, a group or class of persons. Based on the provision, it was submitted that the Plaintiffs/ Respondents did institute this suit on their behalf and on behalf of other officials and members of Kangundo Business Community which is a Community Based Organization.

15. According to the Respondents, it is not in dispute that the entity is unregistered but was established on 8/03/2017 and is governed by a written Constitution. It was submitted that it is not in dispute that the officials of the entity were duly elected by members of the entity during an Annual General Meeting. The Respondents contended that no evidence was presented nor was it alleged that the Plaintiffs/Respondents are not members of, or not acting in the interest of the entity or that the suit is instituted is unrepresentative of the interest it purports to represent or is founded on bad faith. According to the Respondents, they are rightfully before the court due to violation or a threat to their rights. Reliance was placed on the doctrine of legitimate expectation as pronounced in Kaplana H.Rawal vs. Judicial Service Commission& 4 Others (2015) eKLR and Communication Commission of Kenya & 5 Others vs. Royal Media Services Limited & 5 Others(2014) eKLR.

16. It was submitted that the Applicants have not explained how they got elected as officials of the organization. That no election or Annual General Meeting was called as per the organization Constitution by the Secretary. According to the Respondents, the Applicants did not tender minutes of the alleged meeting to elect them as the office bearers.

17. It was noted that while the Applicants acknowledge that the organization is not registered, they have not questioned its existence and how it runs its day to day business. It was submitted that the Applicants have been members of the organization since its formation and have been active all through. That it is their action of ascending to lead the organization that is being questioned for violating the organization Constitution. Reliance was placed on Mativo J’s observation in Shamsher Kenya Limited vs. Director of Public Prosecution & 2 Others (2018) eKLR.

18. According to the Respondents, the Applicants have not tendered any evidence to warrant the court to grant the orders sought in their application. It was urged that since the Respondents have a cause of action against the Applicants, the application should be dismissed with costs as the Applicants will not suffer any prejudice if the matter is heard on merits. judgment is delivered as there are no explanation as to why they admit.

Determination 19. I have considered the application, affidavit in support and in opposition and the submissions as well as the cases relied upon.

20. In my view the issues that emerge for determination are:-1. Whether the Plaintiffs/Respondents have locus standi to lodge the suit and purport to act on behalf of Kangundo Town Business Community Organization.2. Whether the Originating Summons dated 31st August, 2021 discloses a reasonable cause of action hence should not be struck out with costs

21. The issue of locus standi raises a point of law that touches on the jurisdiction of the Court, and it should be resolved at the earliest opportunity. In Mary Wambui Munene vs. Peter Gichuki Kingara and Six Others, Sup. Ct. Petition No. 7 of 2013; [2014] eKLR, this Court held (at paragraphs 68 and 69) that the question of jurisdiction is a “pure question of law,” and should be resolved on a priority basis.

22. Locus standi is defined in Black’s Law Dictionary, 9th Edition (page 1026) as “the right to bring an action or to be heard in a given forum”.

23. In the case of Law Society of Kenya vs. Commissioner of Lands & Others, Nakuru High Court Civil Case No. 464 of 2000, the Court held that;“Locus Standi signifies a right to be heard, a person must have sufficiency of interest to sustain his standing to sue in court of law”.

24. In Alfred Njau and Others vs. City Council of Nairobi (1982) KAR 229, the Court also held that;-“the term Locus Standi means a right to appear in Court and conversely to say that a person has no Locus Standi means that he has no right to appear or be heard in such and such proceedings.”

25. With the promulgation of the Kenyan Constitution, 2010, the scope of locus standi was enlarged as envisaged under Articles 22 and 258. In John Wekesa Khaoya vs. Attorney General, Petition No. 60 of 2012; [2013] eKLR the High Court thus expressed the principle:“…the locus standi to file judicial proceedings, representative or otherwise, has been greatly enlarged by the Constitution in Articles 22 and 258 of the Constitution which ensures unhindered access to justice…”

26. According to the Respondents, Article 22 of the Constitution, 2010 gives any person the right to institute civil proceedings. Article 22 of the Constitution provides that:“(1)Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.(2)In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by–(a)a person acting on behalf of another person who cannot act in their own name;(b)a person acting as a member of, or in the interest of, a group or class of persons;(c)a person acting in the public interest; or(d)an association acting in the interest of one or more of its members.”

27. Article 258, on the other hand, provides that;(1)Every person has the right to institute court proceedings, claiming that this Constitution has been contravened, or is threatened with contravention.(2)In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by—(a)a person acting on behalf of another person who cannot act in their own name;(b)a person acting as a member of, or in the interest of, a group or class of persons;(c)a person acting in the public interest; or(d)an association acting in the interest of one or more of its members.”

28. In Michael Osundwa Sakwa vs. Chief Justice and President of the Supreme Court of Kenya & another [2016] eKLR the Court, while referring to the matter ofMs. Priscilla Nyokabi Kanyua vs. Attorney General & Interim Independent Electoral Commission Nairobi HCCP No. 1 of 2010 asserted that;“…In Kenya the Court has emphatically stated that what gives locus standi is a minimal personal interest and such interest gives a person standing even though it is quite clear that he would not be more affected than any other member of the population.”

29. Similarly, the Court in the matter of Khelef Khalifa El-Busaidy vs. Commissioner of Lands & 2 others [2002] eKLR while canvassing the issue of Locus Standi stated thus:“…for an individual to have a locus standi, he must have an interest either vested or contingent in the subject matter before the court, which interest must be a legal one. Such interest must be above that of other members of the public in general.”

30. According to the Plaintiffs/Respondents, the suit has been instituted on their behalf and on behalf of the other officials and members of the entity. According to the Respondents, their rights are being violated or threatened with violation by the Applicants who have ascended to the leadership of the organization without public participation and in violation of the Constitution of the entity. The Plaintiffs/Respondent asserted that they have legitimate expectation sine they are the duly elected officials of Kangundo Town Business Community and not the Defendants/ Applicants.

31. On the part of the Applicants, they contend that Chris Kyalo, the 1st Respondent has not attached any authority to confirm that he swore the affidavits in his behalf and on behalf of the other Respondents. That there is no document signed by the members confirming they are part of the Originating Summons. The Applicants contended that the four (4) Respondents had not procured any authority and/consent from the other officials who are alleged to have been duly elected together with the Respondents.

32. In addition, it was submitted that the suit brought by the Respondents is a non-starter since the entity is not registered. According to the Applicants, a non-existence entity does not have the capacity to sue or be sued hence the Respondents do not have the locus standi to sue on its behalf. To the Applicants, the Respondents do not have the requisite representative capacity. In support of their case, the Applicants relied on the case of Elijah Sikona & George Panken Narok on behalf of Trusted Society of Human Rights Alliance vs. Mara Conservancy & 5 Others (2014) eKLR, where Anyara Emukule J, opined as follows:-13. Further the action herein was filed on 30th April 2013, when the registration of Trusted Society of Human Rights Alliance was still subsisting. However the said organization was among those whose certificates of Registration were cancelled by Gazette Notice Number 11962 of First August 2013, published on 16th August 2013. Currently therefore there is no lawfully existing body on whose behalf the Plaintiffs can purport to act. It would therefore be an abuse of the Court process to have a suit pending by or on behalf of a non-existent organization. It would defeat the entire overriding objective of Civil Litigation to apply both the Court’s time and resources not for the proper administration of justice, but on imaginary and illusory wrongs…….”

33. In my view the above decision is distinguishable from the facts in this case in the sense that Kangundo Town Business Community had ongoing activities despite not being registered. The entity in that case having been deregistered by a legal instrument ceased to exist both legally and factually. In this case though the organization is not registered, it is clear from both parties that the entity exists with a Constitution that has governed its affairs and has duly elected officials .

34. The Applicants argument that Chris Kyalo, the 1st Respondent does not have the capacity to swear the affidavits to the Originating Summons due to lack of an authority to confirm that he swore on his behalf and on behalf of other Plaintiffs/ Respondent also in my view does not suffice. I note that at paragraph 2 of his supporting affidavit, he averred that he had the authority of his co-Plaintiffs to swear the affidavit on their and his own behalf. In my view, despite lack of a written authority from the other Plaintiffs/Respondents, his averment is sufficient.

35. It is submitted on behalf of the Applicants that since there were 11 duly elected officials to ran the affairs of the organization, the Plaintiffs/Respondents ought to have procured and authority and/or consent from the other office bearers.

36. I associate myself with the case of Presbyterian Foundation & another vs. East African Partnership Limited & Another [2012] eKLR where Court expressed itself as follows:-“In the supporting Affidavit dated 8th April 2019 and the supplementary Affidavit dated 26th June 2019, Shane Leahy stated that he was a Director of the Plaintiff Company and had been duly authorized to swear the Affidavit on behalf of the Company. This in my view is sufficient…”

37. In the premises I find that the Plaintiffs/Respondents have the locus standi to lodge the Originating Summons dated 31st August, 2021.

38. As to whether the said Originating Summons should be struck out for not disclosing a reasonable cause of action, the application herein is principally brought under Order 2 rule 15(1) (b) and (d) of the Civil Procedure Rules, 2010 which provides as follows:(1)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.

39. In the case of D.T Dobie & Company Kenya Limited –vs- Muchina (1980) KLR, the Court of Appeal stated as follows:“…A cause of action is an act on the part of the defendant which gives the plaintiff his cause of complaint… A pleading will not be struck out unless it is demurrable and something worse than demurrable and the rule is only acted upon in plain and obvious cases and the jurisdiction should be exercised with extreme caution. The court must see that the plaintiff has got no case at all, either as disclosed in the statement of claim, or in such affidavit as he may file with a view to amendments and must not dismiss an action merely because the story told in the pleadings was highly improbable, and one which it was difficult to believe could be proved… it is not the practice in Civil administration of the courts to have preliminary hearing as in crime. If it involves parties in the trial of the action by affidavits it is not a plain and obvious case on its face…. The summary jurisdiction is not intended to be exercised by minute and a protracted examination of documents and the facts of the case in order to see whether the plaintiff really has a cause of action. To do that is to usurp the position of the trial judge and to produce a trial of the case in chambers, on affidavits only, without discovery and without oral evidence tested by cross-examination in the ordinary way. This seems to be an abuse of the inherent power of the court and not a proper exercise of power…whereas no evidence is permitted in the case of order 6 Rule 13 (1) (a), it is permitted in the case where there is an allegation that it is an abuse of the court process…. A court of justice should aim at sustaining a suit rather than terminating it by summary dismissal…If a suit shows a semblance of a cause of action, provided that it can be injected with a real life by amendment, it ought to go forward to hearing for a court of justice ought not act in darkness without the full facts before it…”

40. In Yaya Towers Limited vs. trade Bank Limited (In Liquidation) Civil Appeal No. 35 of 2000, the court of Appeal expresses itself thus:“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…. It cannot be doubted that the court has inherent jurisdiction which ought to be sparingly exercised and only in exceptional cases, and its exercise would not be justified merely because the story told in the pleadings was highly improbable, and one, which was difficult to believe, could be proved…No suit should be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action and it so weak as to be beyond redemption and incurable by amendment…”

41. In Co-Operative Merchant Bank Ltd. vs. George Fredrick Wekesa Civil Appeal No. 54 of 1999 the Court of Appeal stated as follows:“The power of the Court to strike out a pleading under Order 6 rule 13(1)(b)(c) and (d) is discretionary and an appellate Court will not interfere with the exercise of the power unless it is clear that there was either an error on principle or that the trial Judge was plainly wrong...Striking out a pleading is a draconian act, which may only be resorted to, in plain cases...Whether or not a case is plain is a matter of fact...Since oral evidence would be necessary to disprove what either of the parties says, the appellant’s defence cannot be said to present a plain case of a frivolous, scandalous, vexatious defence, or one likely to prejudice, embarrass or delay the expeditious disposal of the respondent’s action or which is otherwise an abuse of the process of the court. The defence raises a fundamental issue, namely, whether there was any misrepresentation as alleged by the respondent, a question which, cannot possibly be answered at the stage of an application for striking out; nor will it be competent for the court of appeal to try to answer it as its jurisdiction only extends to identifying whether, if any, there are issues which are fit to go for trial. The court has no doubt whatsoever, that the above is a fundamental triable issue...A Court may only strike out pleadings where they disclose no semblance of a cause of action or defence and are incurable by amendment. The appellant’s defence cannot be said to fall into that category and had the trial Judge considered fully all the matters alluded to, he would not have come to the same conclusion as he did.”

42. According to the Defendants/ Applicants, the Plaintiffs/Respondents Originating Summons is scandalous, frivolous, and vexatious and is otherwise an abuse of the process of the Court.

43. A pleading is scandalous if it states (i) matters which are indecent; or (ii) matters that are offensive; or (iii) matters made for the mere purpose of abusing or prejudicing the opposite party; or (iv) matters that are immaterial or unnecessary which contain imputation on the opposite party; or (v) matters that charge the opposite party with bad faith or misconduct against him or anyone else; or (vi) matters that contain degrading charges; or (vii) matters that are necessary but otherwise accompanied by unnecessary details. See Blake vs. Albion Life Ass. Society (1876) LJQB 663; Marham vs. Werner, Beit & Company (1902) 18 TLR 763; Christie vs. Christie (1973) LR 8 Ch 499.

44. However, the word “scandalous” for the purposes of striking out a pleading under Order 2 rule 15 of the Civil Procedure Rules is not limited to the indecent, the offensive and the improper and that denial of a well-known fact can also be rightly described as scandalous. See JP Machira vs. Wangechi Mwangi and Nation Newspapers Civil Appeal No. 179 of 1997.

45. But they may not be scandalous if the matter however scandalising is relevant and admissible in evidence in proof of the truth of the allegation in the plaint or defence so that when considering whether the matter is scandalous regard must be had to the nature of the action.

46. A matter is frivolous if (i) it has no substance; or (ii) it is fanciful; or (iii) where a party is trifling with the Court; or (iv)when to put up a defence would be wasting Court’s time; or (v) when it is not capable of reasoned argument. See Dawkins vs. Prince Edward of Save Weimber (1976) 1 QBD 499; Chaffers vs. Golds Mid (1894) 1 QBD 186.

47. Again a pleading or an action is frivolous when it is without substance or groundless or fanciful and is vexatious when it lacks bona fides and is hopeless or offensive and tends to cause the opposite party unnecessary anxiety, trouble and expense. See Bullen & Leake and JacobsPrecedents of Pleading (12th Edn.) at 145.

48. A matter is said to be vexatious when (i) it has no foundation; or (ii) it has no chance of succeeding; or (iii) the defence (pleading) is brought merely for purposes of annoyance; or (iv) it is brought so that the party’s pleading should have some fanciful advantage; or (v). where it can really lead to no possible good. See Willis Vs. Earl Beauchamp (1886) 11 PD 59.

49. Pleading tend to prejudice, embarrass or delay fair trial when (i) it is evasive; or (ii) obscuring or concealing the real question in issue between the parties in the case. It is embarrassing if (i) It is ambiguous and unintelligible; or (ii) it raises immaterial matter thereby enlarging issues, creating more trouble, delay and expense; or (iii) it is a pleading the party is not entitled to make use of; or (iv) where the defendant does not say how much of the claim he admits and how much he denies. See Strokes vs. Grant (1878) AC 345; Hardnbord vs. Monk (1876) 1 Ex. D. 367; Preston vs. Lamont (1876).

50. A pleading which tends to embarrass or delay fair trial is described as a pleading which is ambiguous or unintelligible or which states immaterial matters and raises irrelevant issues which may involve expenses, trouble and delay and that which contains unnecessary or irrelevant allegations which will prejudice the fair trial of the action and lastly a pleading which is abuse of the process of the court really means in brief a pleading which is a misuse of the Court machinery or process. See Trust Bank Limited vs. Hemanshu Siryakat Amin & Company Limited & Another Nairobi HCCC No. 984 of 1999.

51. A pleading is an abuse of the process where it is frivolous or vexatious or both.

52. In this case, the Respondents have attached minutes of the entity held on 8th March, 2017 which show the Respondents to be part of the entity leadership. The 1st Respondent is indicated to be the Chairperson of the entity as well as the other Respondents have positions in the entity. The Respondents submitted that the Applicants did not explain how they got elected since there is no evidence of minutes from the Applicants. According to the Respondents, the Applicant are being questioned on the action of ascending to the leadership of the entity on violation of the Constitution which governed the entity.

53. In my view, the issues complained of by the Plaintiffs/Respondents in the Originating Summons are issues of law and fact that the trial court require to determine in a full hearing. Under Article 50(1) of the Constitution, every person has the right to have any dispute that can be resolved by the application of the law decided in a fair and public hearing before a court or if appropriate, another independent and impartial tribunal or body. Under Article 25 that right cannot be limited. Order 50 Rule 10 (2) is to the effect that no application shall be defeated on a technicality or for want of form that does not affect the substance of the application as well as Article 159(2) (d) of the Constitution that enjoins court to administer justice without undue regard to technicality.

54. I appreciate that clearly untenable proceedings ought not to be entertained by the Court since as held by the Court of Appeal in Muchanga Investments Limited vs. Safaris Unlimited (Africa) Ltd & 2 Others Civil Appeal No. 25 of 2002 [2009] KLR 229:“…the often quoted principle that a party should have his day in court should not be taken literally. He should have his day only when there is something to hear. No party should have a right to squander judicial time. Hearing time should be allocated by the court on a need basis and not as a matter of routine. Judicial time is the only resource the courts have at their disposal and its management does positively or adversely affect the entire system of the administration of justice…We approve and adopt the principles so ably expressed by both Lord Roskil and Lord Templeman in the case of Ashmore V Corp Of Lloyds [1992] 2 ALL E.R 486 at page 488 where Lord Roskil states:“It is the trial judge who has control of the proceedings. It is part of his duty to identify crucial issues and to see they are tried as expeditiously and as inexpensively as possible. It is the duty of the advisers of the parties to assist the trial judge in carrying out his duty. Litigants are not entitled to the uncontrolled use of a trial judge’s time. Other litigants await their turn. Litigants are only entitled to so much of the trial judges’ time as is necessary for the proper determination of the relevant issues.”At page 493 of the same case Lord Templeman delivered himself thus:…“an expectation that the trial would proceed to a conclusion upon the evidence to be produced is not a legitimate expectation. The only legitimate expectation of any plaintiff is to receive justice. Justice can only be achieved by assisting the judge.”…….In the case of Fremar Construction Co Ltd V Mwakisiti Navi Shah 2005 e KLR at page 6 where the Court said:-Trials are not merely held to glorify the hallowed principle that disputes ought to be heard and determined on oral evidence in open court. Unless a trial is on discernable issues it would be farcical to waste judicial time on it.”…..In our view he, knowingly and dishonestly used the legal process to accomplish an ulterior purpose to that of the court process, which is to protect the interests of justice… The 1st respondent and Mr Church did manifestly exploit the process whereas it was in our view clear to them that they lacked good faith in instituting the Originating Summons thereby causing prejudice and delay. The action was also wanting in bona fides and was oppressive to the appellant. All these in our view constitute abuse of process.”.

55. As appreciated by Omollo, JA in the case of J P Machira vs. Wangethi Mwangi & Another Civil Appeal No. 179 of 1997, although disputes ought to be heard by oral evidence in court, there is no magic in holding a trial and receiving oral evidence merely because it is normal and usual to do so since a trial must be based on issues; otherwise it may become a farce.

56. In this case however, I find that these pleadings are not in such a state that no amount of resuscitation can breathe life into them. Consequently, I find that it would not promote the course of justice to guillotine the same at this stage. In my view the Originating Summons dated 31st August,2021 ought to be heard and facts ascertained to arrive at a just determination.

57. In the premises, I find the Notice of Motion devoid of merits and dismiss it with costs.

58. It is so ordered.

READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 21ST DAY OF JULY, 2022. G V ODUNGAJUDGEDelivered in the presence of:Mr Musya for Mr Kyalo for the Defendant/ApplicantMr Mwongela for the Plaintiff/RespondentCA Susan