[2022] KEHC 18130 (KLR)

Limi & another v Webtribe Limited t/a Jambo Pay (Commercial Case E102 of 2022) [2022] KEHC 18130 (KLR) (Commercial and Tax) (14 October 2022) (Ruling)

Neutral citation: [2022] KEHC 18130 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Commercial Case E102 of 2022

DO Chepkwony, J

October 14, 2022

Between

Xtian Dela Limi

1st Plaintiff

Crowd Property Investment Limited

2nd Plaintiff

and

Webtribe Limited T/A Jambo Pay

Defendant

Ruling

1. Before this Honourable Court is a Notice of Motion application dated 12th April, 2022 brought under Order 2 rule 15 and order 4 rule 6 of the Civil Procedure Rules, 2010. The application is couched in the following terms;a.Spent;b.That this Honorable Court be pleased to issue an Order to strike out the Plaintiff's suit for offending Order 4 Rule 1 (2) and 6 and Order 2 Rule 15 is of the Civil Procedure Rules;c.That the cause of costs.

2. The application is premised on the grounds on the face of the application and further supported by the annexed affidavit of Ven Rasugu of even date. The grounds are set out in the following manner;a.That the Defendant in Milimani CMCC No 15 of 2022 has filed a fresh suit against the Plaintiff.b.That the Defendant was served with the Pleadings which he acknowledged.c.That the Plaintiff's suit herein despite the existence of another similar suit involving the same person is scandalous, frivolous and/or vexatious and is intended to prejudice, embarrass or delay the fair trial of Milimani CMCC No 15 of 2022. d.That the Defendant is therefore seeking for an Order to strike out the Plaintiff's suit for offending Order 4 Rule 1 (2) and 6 and Order 2 Rule 15 is of the Civil Procedure Rules.

3. The Defendant/Applicant herein after referred to as “Applicant” avers in her Supporting Affidavit to the Motion that she is the Director and Head of Customer Experience of the Respondent’s company in the lower court and had filed a suit being Milimani CMCC No 15 of 2022 against the Plaintiffs/Respondents herein after referred to as “Respondents”.

4. She states that the Respondents’ suit against the Applicant has been filed despite the existence of another similar suit involving the same person hence the same is scandalous, frivolous and/or vexatious and is intended to prejudice, embarrass or delay the fair trial of Milimani CMCC No 15 of 2022.

5. The Applicant seeks for an order to strike out the Plaintiffs’ suit for offending Order 4 Rule 1(2) and (6) and Order 2 Rule 15 of the Civil Procedure Rules.

6. The application is opposed by the Respondents vide a Replying Affidavit sworn on May 17, 2022 by Arthur Mandela who is the Director of the 1st and 2nd Respondents’ Companies.

7. In his affidavit, the said Director states that the Applicant’s application dated April 12, 2022 is frivolous, vexatious and an outright abuse of the court process and that it is an afterthought only meant to coerce, embarrass and intimidate the Respondents without any reasonable cause.

8. The Respondents’ Director further states that the plaint on record is accompanied by a proper Verifying Affidavit sworn and commissioned before a Commissioner for oaths on March 30, 2022 as required by law.

9. He contends that it is not a requirement under the law that a verifying affidavit must contain an averment to the effect that there exist another suit pending as between the parties.

10. The Respondents’ Director has averred that the suit herein is totally different from Milimani CMCC No 15 of 2022 for the reason that the parties are completely different from the ones in the present suit. In Milimani CMCC No 15 of 2022 the Plaintiffs are Webtribe Limited T/A Jambopay and Danson Muchemi while the Defendant is Arthur Mandela a.k.a Xtian Dela and the cause of action is different from that in Milimani CMCC No 15 of 2022, as the Respondents are seeking general damages for libel against the Defendant while in the present suit, the Plaintiffs have sued Webtribe Limited T/A Jambo Pay for general and special damages arising from a breach of contract.

11. The Respondents’ Director has also stated that the present application by the Defendant/ Applicant is unmaintainable and serves no other purpose than being a mere delaying tactic that would defer the hearing of the suit thus causing prejudice to the Plaintiffs/Respondents.

12. They further state that the suit herein raises substantive issues that should be heard and determined on merit and therefore the Defendant/Applicant's application dated April 12, 2022 should be dismissed.

13. On June 9, 2022 this court issued directions that parties file submissions in canvassing the application before court for ruling. The Applicant’s submissions are dated May 27, 2022 while the Respondents’ submissions are dated June 8, 2022 and the same will be taken into consideration in my determination of the application as they are a reiteration of what is deponed in the respective affidavits by the parties.

Analysis and Determination 14. I have considered the Notice of Motion application dated April 12, 2022, grounds relied upon by the parties in the affidavit in support and in opposition thereto, the submissions by both Counsel alongside the cited statute and case law. The only relevant issue for determination is whether the Applicant has met the threshold for striking out this suit as provided under Order 4 Rule (2) and (6) and Order 2 Rule 15, both of the Civil Procedure Rules.

15. In considering an application for striking out of pleadings the point of entry for the court is provided for under Order 2 Rule 15(1) of the Civil Procedure Rules, 2010 which states 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 defense in law; orb.It is scandalous, frivolous or vexatious; orc.It may prejudice, embarrass or delay the fair trial of the action; ord.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.”

16. However, it should be noted that striking out of pleadings is a draconian mechanism which should be exercised sparingly and with caution once or only when a court establishes that the pleadings are so hopeless and do not establish a prima facie case to warrant further interrogation by the Court.

17. The principles guiding the court in an application of this nature were laid down by the Court of appeal in the case of Blue Shield Insurance Company Ltd –vs- Joseph Mboya Oguttu [2009] eKLR, where it stated that;“The principles guiding the Court when considering such an application which seeks striking out of a pleading is now well settled. Madan J.A. (as he then was) in his Judgment in the case of D.T. Dobie and Company (Kenya) Ltd vs Muchina (1982) KLR 1 discussed the issue at length and although what was before him was an application under Order 6 rule 13 (1) (a) which was seeking striking out a plaint on grounds that it did not disclose a reasonable cause of action against the Defendant, he nonetheless dealt with broad principles which in effect covered all other aspects where striking out a pleading or part of a pleading is sought. It was held in that case inter alia as follows: -“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 this is solely reserved for the trial Judge. 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.”“We too would not express our opinion on certain aspects of the matter before us.

18. In that Judgment, the learned Judge quoted Dankwerts L.J in the case of Cail Zeiss Stiftung –vs- Ranjuer & Keeler Ltd &others(No 3) (1970) ChpD 506, where the Lord Justice said:-“The power to strike out any pleading or any part of a pleading under this rule is not mandatory; but permissive and confers a discretionary jurisdiction to be exercised having regard to the quality and all the circumstances relating to the offending pleading.”“We may add that like Madan J.A, said, the power to strike out a pleading which ends in driving a party from the Judgment seat should be used very sparingly and only in cases where the pleading is shown to be clearly untenable.”

19. A careful consideration of the grounds that have been relied upon by the Applicant in the instant case, shows that they are seeking to strike out this suit filed by the Respondents on the ground of an existing matter before the Chief Magistrate’s Court in which the Applicant is the Plaintiff.

20. I have had the opportunity to peruse the plaint filed in the Chief Magistrate’s Court alongside the Plaint filed in this matter. I note that the matter before Magistrates Court was filed by the Applicant as against the Respondents and is seeking for general and exemplary damages for libel and for publishing words concerning the Plaintiffs without taking any sufficient steps or precaution to establish whether they were true or not.

21. On the other hand, the claim by the Respondents in the matter before this court, the Plaint shows that the claim is for general damages for breach of contract, exemplary damages and special damages of Kshs 27,786,624/= for the 1st Respondent and Kshs 4,028,400/= for the 2nd Respondent.

22. The gist of the cause of action is that on September 22, 2021 and September 28, 2021, the Applicant entered into contracts of provision of payment of Gateway Services between the 1st Respondent and the 2nd Respondent respectively.

23. It is clear from the two Plaints that the suit in the Magistrate’s Court relates to general damages for defamation while the suit before court is for breach of contract. It is therefore my humble view that the two suits are not similar as alleged by the Applicant in this matter.

24. Based on the foregoing, I believe both parties need a day in court to litigate their claim to logical conclusion otherwise striking out this matter at this this stage of the proceedings would be condemning the Respondents unheard contrary to the provision of Article 50 of theConstitution.

25. The Applicant has also urged this court to find that the plaint by the Respondents contravenes the provision of Order 4 (1) (1) (f) of the Civil Procedure Rules, 2010. The said order provides that;“...an averment that there is no other suit pending, and that there have been no previous proceedings, in any court between the Plaintiff and the Defendant over the same subject matter and that the cause of action relates to the Plaintiff-named in the Plaint.”Order 4 Rule 2 provides that “the plaint shall be accompanied by an affidavit sworn by the Plaintiff verifying the correctness of the averments contained in rule 1(1) (f) above.”

26. It is my humble view that failure to state in the verifying affidavit the existence of another matter as alleged by the Applicant is not fatal and can be cured by the provision of Article 159(2) (d) of theConstitution which provides that justice shall be administered without undue regard to technicalities.

27. Be that as it may, since the first limb of this application has not succeeded, I do not see the need of delving and spending too much time of this Court on the issue of the Verifying Affidavit.

28. In the end, I make a finding that the application dated April 12, 2022 is without merit and the same is hereby dismissed with costs to the Respondents.It is so ordered.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 14TH DAY OF OCTOBER, 2022. D. O. CHEPKWONYJUDGEIn the presence of:Mr. Okato counsel holding brief for Mr. Andrew Khakula counsel for PlaintiffMr. Ayugi counsel holding brief for Mr. Ojienda counsel for DefendantCourt Assistant - Sakina