[2018] KEHC 1687 (KLR)
The court found that the issues raised by the plaintiffs were not suitable for summary determination at the interlocutory stage. The pleadings disclosed triable issues that should be determined at a full hearing. The court emphasized that striking out a suit is a drastic remedy that should only be invoked in the...
Source-derived case information.
- Citation
- [2018] KEHC 1687 (KLR)
- Parties
- Plaintiff: Mariko Chepkonga; Plaintiff: Jackson Maina Gachanja; Defendant: National Social Security Fund
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 221 of 2016
- Procedural Posture
- Civil Suit / Ruling on Application to Strike Out Plaint
- Outcome
- application dismissed
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Striking Out of Pleadings, Reasonable Cause of Action, Abuse of Court Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mariko Chepkonga
Plaintiff
Jackson Maina Gachanja
Plaintiff
National Social Security Fund
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Strike Out Plaint
Legal Issues
- 1 Whether the plaint discloses any reasonable cause of action against the defendant.
- 2 Whether the suit is an abuse of the court process and should be struck out.
- 3 Whether the absence of a contract between the parties bars the plaintiffs' claim.
Ratio Decidendi
The court found that the issues raised by the plaintiffs were not suitable for summary determination at the interlocutory stage. The pleadings disclosed triable issues that should be determined at a full hearing. The court emphasized that striking out a suit is a drastic remedy that should only be invoked in the clearest of cases, and that even a weak case should be allowed to proceed to hearing. The defendant's application did not meet the threshold for striking out the plaint, as the material facts and legal arguments required the benefit of a trial. Accordingly, the application to strike out the plaint was dismissed with costs to the plaintiffs.
Court Disposition
application dismissed
Orders
- The defendant's application to strike out the plaint is dismissed with costs to the plaintiffs.
- The suit is certified ready for hearing.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL SUIT NO. 221 OF 2016
MARIKO CHEPKONGA...............................................1ST PLAINTIFF
JACKSON MAINA GACHANJA................................2ND PLAINTIFF
VERSUS
NATIONAL SOCIAL SECURITY FUND........................DEFENDANT
RULING
This suit was filed on 23rd August, 2016. It is related to a claim for general and special damages arising from demolition of some property which belonged to the plaintiffs. The plaintiffs blamed the defendants for the said loss. The defendant filed a statement of defence on 23rd September, 2016 denying the plaintiffs’ claim.
There is now before me an application by way of Notice of Motion under Order 2 rule 15 1 (a) and (d) order 51 rule 1 of the Civil Procedure Rules, Section 3 (3) of the Law of Contract Act Cap 23,Sections 1A, 1B 3 and 3A of the Civil Procedure Act, filed on 25th May, 2018 seeking an order that the plaint dated 23rd August, 2016 be struck out for reasons that it does not disclose any reasonable cause of action against the defendant, that it may delay the fair trial and that it is otherwise an abuse of the court process. It is supported by an affidavit sworn by one Pius Sila, the Tenant Purchase Officer of the defendant. The application is opposed and there are grounds of opposition filed on behalf of the plaintiffs. Both parties have filed submissions to address the application.
The thrust of the defendant’s case is that there was no contract between the plaintiffs and the defendant and therefore the plaintiffs have no legal interest capable of sustaining any suit against the defendant.
The striking out of any pleading is a drastic measure which should only be invoked in the clearest of cases. I have seen the issues drawn by the plaintiff for determination and related the same to the pleadings drawn and filed by the parties herein.
The submissions filed address matters that ideally belong to the province of a trial. If I were to strike out the plaintiffs’ suit at this stage, the plaintiffs will be driven out of the seat of judgment before any hearing. However weak their case may be, they should have their day in court. In the case of Cassam v Sachania (1982) KLR 191at page197, the court observed as follows,
“..Summary determinations are for plain cases, both as regards the facts and the law. An issue between the parties to an interlocutory application should not be decided at that stage unless the material facts are capable of being adequately established and the law is capable of being fully argued without the benefit of a trial.”
I am not persuaded that this is a right case for invoking the order sought by the defendant and therefore dismiss the application with costs to the plaintiffs.
I note that the only step remaining before the hearing of the suit is the certificate that the suit is ready for hearing. I have seen some directions given by the Deputy Registrar on 24th April 2018 allowing the defendant time to file witness statements which are yet to be complied with.
The time given by the Deputy Registrar having expired, and the application for striking out having been dismissed, this suit is hereby certified ready for hearing. Parties shall take a hearing date in the registry.
Dated, signed and delivered at Nairobi this 13th day of December, 2018.
A. MBOGHOLI MSAGHA
JUDGE