https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12074

Omondi v Mwanthi & 12 others (Sued as the Managing Committee of KIFWA Mombasa Branch) (Civil Suit E035 of 2021) [2026] KEHC 12074 (KLR) (24 July 2026) (Ruling) Neutral citation: [2026] KEHC 12074 (KLR) Republic of Kenya In the High Court at Mombasa Civil Suit E035 of 2021 J Ngaah, J July 24, 2026 Between Michael Okach Omondi Plaintiff and Roy F Mwanthi 1st Defendant Mohamed Ramadhan 2nd Defendant Musa O Mbira 3rd Defendant Christine Mukangi 4th Defendant Adan Elmi 5th Defendant Abud S Jamal 6th Defendant Ronald O Omwoyo 7th Defendant Jennifer W Mwangi 8th Defendant Patrick O Oke 9th Defendant Hassan Mbarak 10th Defendant Erastus Muchiri 11th Defendant Beltshezer Kivuva 12th Defendant Naomi Kingoli 13th Defendant Sued as the Managing Committee of KIFWA Mombasa Branch Ruling Introduction 1.By a Notice of Motion dated 19th March 2025, brought under Order 2 Rule 15 of the Civil Procedure Rules, 2010, the 1st, 3rd, 5th, 6th, 9th, 11th and 13th Defendants (“the Applicants”) seek orders that the suit before court be struck out on the grounds that (i) it may prejudice and or embarrass the fair trial of the action; (ii) the substratum of the suit has been overtaken by events; and (iii) the pleadings served on the Defendants were, in any event, not signed. They have also sought an order for costs of the application. 2.The application is supported by the affidavit of Roy F. Mwanthi, the 1st Defendant, sworn on 19th March 2025, in which the deponent states that he has the authority of the 3rd, 5th, 6th, 9th, 11th and 13th Defendants to swear the affidavit on their behalf. Background 3.The suit was commenced by a plaint dated 8th April 2021, in which the Plaintiff sought, among other reliefs: a declaration that no Annual General Meeting (“AGM”) was conducted in accordance with the KIFWA Constitution; a permanent injunction restraining the office bearers purportedly elected on 25th March 2021 from taking over office, or, in the alternative, an order maintaining the status quo pending the holding of a fresh AGM; an order that a fresh AGM be conducted in accordance with the KIFWA Constitution, with provision for virtual participation by members above fifty-eight years of age; costs; and interest. 4.Together with the plaint, the Plaintiff had also filed an application dated 8th April 2021 seeking interlocutory injunctive relief restraining the Defendants from assuming office pending the hearing and determination of the suit. That application was heard and dismissed on 25th February 2022. The application 5.The Applicants’ case, as set out in the Notice of Motion, the supporting affidavit, and the written submissions dated 18th June 2025, may be summarised as follows: that the suit was brought to challenge the election of office bearers held on 25th March 2021, whose term of office under the KIFWA Constitution was to run for one year, ending in March 2022; that fresh elections have since been conducted at AGMs held in 2023, 2024 and 2025; and that the substratum of the suit has accordingly been spent, such that any order the court could make would be superfluous. 6.The Applicants further contend that the plaint, the application dated 8th April 2021, and other pleadings served on the 1st, 3rd, 5th, 6th, 9th and 11th Defendants were not signed, contrary to Order 2 Rule 16 of the Civil Procedure Rules, and that no reply has ever been filed to that specific averment in their defence. It is on this combination of grounds that the Applicants urge that the continued prosecution of the suit will prejudice or embarrass its fair trial. 7.In their written submissions, the Applicants additionally urge that the application be treated as unopposed and granted as prayed. They point out that on 25th May 2025 the court directed the Respondent to respond to the application within fourteen (14) days, a period which they contend lapsed on 9th June 2025 without any response having been filed, and invoke Order 51 Rule 14(1) of the Civil Procedure Rules in support of that contention. Response 8.The court record shows that on 27th May 2025, within the fourteen days directed by the court and, precisely two days after the directions were issued, the Plaintiff filed Grounds of Opposition to the application. 9.In the Grounds of Opposition, the Plaintiff contends, in summary, that the application is frivolous, vexatious and an abuse of the process of the court and does not meet the threshold under Order 2 Rule 15 of the Civil Procedure Rules; that the plaint discloses a reasonable cause of action arising from the conduct and legality of the elections of 25th March 2021 and the events that followed; that the issues raised remain live and justiciable, with continuing implications on governance, accountability and the legitimacy of the past office bearers’ actions; that the expiry of the impugned office bearers’ term does not render the claim moot, as the Plaintiff is entitled to pursue declaratory or consequential reliefs flowing from the alleged illegality of the elections, including possible nullification of decisions taken and financial accountability; that whether the substratum of the suit has been overtaken by events is a matter of evidence and law properly left for trial and not suitable for summary disposal at the interlocutory stage; that any failure to sign the pleadings is, at most, a curable procedural irregularity under Article 159(2)(d) of the Constitution which does not go to the root of the claim; and that the application is brought solely to delay the fair hearing of the suit and deny the Plaintiff access to justice. Analysis and determination Whether the application is unopposed 10.I deal first with the Applicants’ contention that the application ought to be treated as unopposed and granted as prayed. That contention does not withstand scrutiny of the court record. The Grounds of Opposition were filed on 27th May 2025, well within the fourteen days allowed by the directions issued on 25th May 2025, and were duly served on the Applicants’ advocates. Grounds of opposition, addressed as they are to points of law and to the face of the application, are a recognised and sufficient mode of responding to a notice of motion. There was, therefore, no default on the Plaintiff’s part, and the premise of the Applicants’ submissions on this point is factually mistaken. 11.I am accordingly unable to accede to the invitation to treat this application as unopposed. Subject to the rest of the grounds upon which the defendants’ application is based, the application falls to be determined on its merits. Applicable legal principles 12.Order 2 Rule 15(1) of the Civil Procedure Rules, 2010 empowers the court, at any stage of the proceedings, to order that any pleading be struck out on the ground that it discloses no reasonable cause of action or defence; that it is scandalous, frivolous or vexatious; that it may prejudice, embarrass or delay the fair trial of the action; or that it is otherwise an abuse of the process of the court. 13.It is trite that this jurisdiction is discretionary and is to be exercised sparingly, and only in the plainest and clearest of cases. In The Co-operative Merchant Bank Ltd v George Fredrick Wekesa, Civil Appeal No. 54 of 1999, the Court of Appeal held that striking out a pleading is a draconian act which may only be resorted to in plain cases, and that since oral evidence is ordinarily necessary to resolve the dispute between the parties, a plain case for striking out will rarely be made out. In Yaya Towers Limited v Trade Bank Limited (In Liquidation), Civil Appeal No. 35 of 2000, the Court of Appeal emphasised that a litigant is entitled to pursue a claim, however implausible its chances of success, and that the jurisdiction to dismiss a suit as an abuse of process is to be sparingly exercised and only in exceptional cases; its exercise is not justified merely because the story pleaded is improbable or difficult to believe. The same caution finds expression in D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & Another [1980] eKLR, where it was held that no suit ought to be summarily dismissed unless it is so hopeless that it plainly and obviously discloses no reasonable cause of action, and that where a suit shows a mere semblance of a cause of action capable of being cured by amendment, it ought to be allowed to proceed, for a court of justice ought not to act in darkness without the full facts of the case before it. 14.It is against this exacting standard that the three limbs of the present application fall to be assessed. Whether the substratum of the suit has been overtaken by events 15.It is not in dispute that the term of the office bearers elected on 25th March 2021 expired in March 2022, and that further AGMs, at which fresh committees were elected, have since been held in 2023, 2024 and 2025. To that extent, the specific interim relief the Plaintiff had sought by the application dated 8th April 2021 which was restraining the 2021 office bearers from assuming or continuing in office, has plainly been overtaken by the passage of time; that very application was, in any event, dismissed as long ago as 25th February 2022. 16.The plaint, however, seeks more than an injunction tied to the tenure of the 2021 committee. It also seeks a declaration that no AGM was conducted in accordance with the KIFWA Constitution on 25th March 2021, and consequential orders touching on the conduct of that election. Whether the lapse of that committee’s term and the subsequent holding of fresh elections renders the entirety of those claims academic, or whether, as the Plaintiff contends, declaratory and or consequential relief bearing on the legality of the 2021 elections and its downstream effects on governance and accountability retains practical utility notwithstanding the change of office bearers, is not a question that can be resolved on the face of the pleadings alone. It calls for an evaluation of the KIFWA Constitution, the conduct of the impugned election, and the nature and consequences of the decisions taken by the 2021 committee during its tenure which matters are properly the subject of evidence at trial. 17.Applying the principles set out above, I am not satisfied that this is one of those plain and obvious cases in which the court can say that the substratum of the suit has been so entirely spent as to warrant striking out the suit in its entirety. This ground of the application accordingly fails. Unsigned pleadings 18.The Applicants’ second limb is that the plaint, the application dated 8th April 2021, and other pleadings served on the 1st, 3rd, 5th, 6th, 9th and 11th Defendants were not signed. Order 2 Rule 16 of the Civil Procedure Rules, 2010 provides, in mandatory terms, that “every pleading shall be signed by an advocate, or recognised agent (as defined by Order 9, rule 2), or by the party if he sues or defends in person.” The category of “recognised agent” is not at large: it is exhaustively defined by Order 9 Rule 2 of the Rules, which confines it to persons holding a power of attorney authorising them to make the relevant appearance, application or act on behalf of the party, and to persons carrying on trade or business for and in the name of a party not resident within the jurisdiction, in matters connected with that trade or business only. A pleading signed by any person falling outside the advocate, the party in person, or that closed category of recognised agent does not satisfy the rule. 19.This requirement is not an empty formality. In Vipin Maganlal Shah & Another v Investment & Mortgages Bank Limited & 2 Others [2001] eKLR (Civil Appeals Nos. 13 & 19 of 2001, consolidated), the Court of Appeal held that the object of requiring a plaint or other pleading to be signed by counsel, the party, or a recognised agent is to make the party filing it take ownership and responsibility for its contents – to serve, as the older English authorities put it, as “a voucher that the case is not a mere fiction.” The Court expressly declined to adopt the more permissive position taken in India, where an unsigned plaint is treated as a mere procedural irregularity curable by amendment at any stage, even after the expiry of limitation. It held instead that the position in Kenya is that a party who files an unsigned plaint runs a very grave risk of having that plaint struck out for non-compliance with the law. 20.On the strength of that authority and the mandatory language of Order 2 Rule 16, I accept that the requirement to sign a pleading cannot be treated as a mere technicality to be excused as a matter of course under Article 159(2)(d) of the Constitution. The Supreme Court has repeatedly cautioned that Article 159(2)(d) is not a panacea for every procedural shortfall: see Raila Odinga & 5 Others v Independent Electoral and Boundaries Commission & 3 Others [2013] eKLR; Patricia Cherotich Sawe v Independent Electoral and Boundaries Commission & 4 Others [2015] eKLR; and Lemanken Aramat v Harun Meitamei Lempaka & 2 Others, Petition No. 5 of 2014, [2014] eKLR, where the Supreme Court distinguished ordinary procedural irregularities, over which the court’s authority under Article 159 remains “unfettered” to cure, from vital conditions attached by law to the exercise of the court’s power, which Article 159(2)(d) cannot be invoked to override. Where a rule of procedure is couched in unambiguous, mandatory terms and has been given serious effect by binding appellate authority, it would be wrong in principle to excuse non-compliance with it merely by invoking Article 159(2)(d). To that extent I do not treat this limb of the application as a mere curable technicality of no consequence. 21.Having found the defect established, and bearing in mind that Order 2 Rule 16 is couched in mandatory terms which, per Vipin Maganlal Shah, this court is not entitled to treat as inconsequential merely by invoking Article 159(2)(d), I am satisfied that this limb of the application is made out. Disposition 22.In conclusion and for the foregoing reasons, I find that the Notice of Motion dated 19th March 2025 succeeds in part. The grounds relating to the substratum of the suit and to prejudice or embarrassment of the fair trial are not made out, for the reasons given above. The ground relating to non-compliance with Order 2 Rule 16 of the Civil Procedure Rules, 2010 is made out, the allegation of non-signature having been sworn to by the Applicants and left unrebutted by the Plaintiff. 23.Accordingly, it is hereby ordered that the plaint dated 8th April 2021, be and is hereby struck out with costs to the defendants. SIGNED, DATED AND DELIVERED ON 24 JULY 2026NGAAH JAIRUSJUDGE