[2022] KEHC 13245 (KLR)

Monga v Bacheeta (Civil Suit E136 of 2021) [2022] KEHC 13245 (KLR) (Civ) (18 May 2022) (Ruling)

Neutral citation: [2022] KEHC 13245 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Suit E136 of 2021

DO Chepkwony, J

May 18, 2022

Between

Yash Pal Monga

Plaintiff

and

Heena Bacheeta

Defendant

Ruling

1. The notice of motion application before court for determination is dated August 13, 2021 and brought under section 3A of the Civil Procedure Act, order 2 rule 7, rule 15(1)(b), (c) & (d), order 7 rule 1 of the Civil Procedure Rules and all other enabling provisions of the law seeking for the following orders that; -a)The defendant’s written statement of defence dated July 26, 2021 be struck out and/or expunged from the court record.b)In the result, judgment be entered for the plaintiff against the defendant as prayed in the plaint dated June 10, 2021. c)The costs of this application and of this suit be awarded to the plaintiff against the defendant.

2. The application is supported by the supporting affidavit of the applicant and is premises on the grounds that;1. The plaintiff filed this suit against the defendant on June 10, 2021 and effected service alongside the summons on July 6, 2021. 2.The defendant filed her memorandum of appearance on July 13, 2021 and her defence on July 26, 2021. 3.The defendant’s statement of defence is scandalous, frivolous and vexatious and is squarely aimed at prejudicing and denying a fair and expeditious trial.4. The defendant’s statement of defence amounts to an abuse of the process of this court.5. The said statement of defence is a sham constituting mere denials intended to delay the expeditious determination of this suit.6. In paragraph 8 of the statement of defence, the defendant makes an admission of liability by acknowledging that she indeed published the defamatory letter on August 9, 2020 and sent it to members of Arya Samaj thus she is guilty of having defamed the plaintiff before the recipients of the impugned letter.7. In the result, the purported statement of defence dated July 26, 2021 drawn and filed for and on behalf of the defendant ought to be struck out.8. In the absence of any defence, judgment ought to be entered for the plaintiff against the defendant as prayed in the plaint dated June 10, 2021.

3. In response to the application the defendant/respondent filed grounds of opposition dated October 1, 2021 set out as follows;1. That the defendant’s statement of defence dated July 26, 2021 raises triable issues which can only be determined after a full trial.2. That the defendant has a legitimate right to defend herself in these proceedings and have a determination of the dispute herein on merits in accordance with the express unqualified and unlimited fundamental right in theConstitution of Kenya, under articles 21(1), 25(c), 47(1), 48 and 159(2)(d).3. That striking out of a pleading is a draconian act, which should be exercised with abundance of caution.4. That the instant application is therefore misconceived, mischievous, frivolous and an abuse of the court process.

4. On October 26, 2021, this court issued directions that the application be canvassed by way of written submissions. Both parties filed their respective submissions in support and in opposition to the application. The plaintiff’s/applicant’s submissions are dated January 12, 2022 while the defendant’s/respondents are dated January 21, 2022.

Applicant’s submissions 5. The applicant submitted that the application is premised on the fact that the impugned statement of defence consists of mere denials and does not raise triable issues but consists of admission of the fact that the defendant sent the defamatory and published defamatory information against the plaintiff.

6. It was submitted for the applicant that order 2 rule 15(1) of the Civil Procedure Rules provides that;-'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; 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.'

7. The applicant urged that the statement of defence be struck out since it does not disclose any defence in law and is only calculated at abusing the process of this honourable court.

8. The applicant contended that the respondent filed her statement of defence on July 26, 2021 but in the said defence she admits to have published the defamatory letter on August 9, 2020 and sent it to members of Arya Samaj. It was submitted that the said admission defeats the remotest purpose of the statement of defence.

9. The applicant cited the provisions of order 2 rule 7(2) of the Civil Procedure Rules which states as follows;'Where in an action for libel or slander the defendant alleges that, in so far as the words complained of consist of statements of fact, they are true in substance and in fact, and in so far as they consist of expressions of opinion, they are fair comment on a matter of public interest, or pleads to the like effect, he shall give particulars stating which of the words complained of he alleges are statements of fact and of the facts and matters he relies on in support of the allegation that the words are true.'

10. It was the Applicant’s submissions that the Respondent in her defence did not provide any information whatsoever to the effect that the statements complained of are either true of consist of fair comment on a matter of public interest hence the defence is not sustainable.

11. The defendant in paragraph 8 of the statement of defence alleges that the independent panel concluded that the plaintiff was culpable yet in the same paragraph, she admits having published the libellous letter on August 9, 2020.

12. The applicant cited order 13 rule 2 of the Civil Procedure Rules which provides; -'Any party may at any stage of a suit, where admission of facts has been made, either on the pleadings or otherwise, apply to the court admissions for such judgment or order as upon such admission he may be entitled to, without waiting for the determination of any other question between the parties; and the court may upon such application make such order, or give such judgment, as the court may think just.'

13. The applicant relied on the case of Cannon Assurance (Kenya) Limited v Maina Mukoma [2018]eKLR, where the court stated as follows:-'All that the plaintiff is required to show is that there is a plain and obvious admission by the defendant as well held in Choitram v Nazari[1984]KLR327. '

14. The applicant in conclusion submitted that he has successfully pleaded his case and thus asked the court to allow the application dated August 13, 2021

Respondent’s submissions 15. In opposition to the application, the respondent filed submissions dated January 21, 2022. The respondent submitted that she was employed by Arya Samaj, Nairobi as an office administrator on June 1, 2019 and on January 22, 2020 was promoted to the position of chief executive officer.

16. The respondent contends that on March 11, 2020, the applicant took over management of the office during which time he displayed continuous aggressive, threatening and intimidating behaviour towards the respondent.

17. On August 9, 2020, the respondent sent a letter to the members of Arya Samaj, Nairobi alerting them of her grievance. Consequently, an independent panel was constituted by the chairlady of Arya Stri Samaj, Nairobi, the women’s group of Arya Samaj, Nairobi, to carry out investigations into the allegations and both parties participated in the proceedings. She submitted that the investigations revealed that there was evidence that the behaviour of the applicant displayed aggressive, threatening and intimidating behaviour towards the respondent, which constituted gender based office harassment. The findings were adopted in the ruling of Arya samaj Pariwaar elders and members of the judicial committee on September 16, 2020.

18. In her submissions, the respondent raised one issue of whether the respondent’s written statement of defence should be struck out and/or expunged from the court record and judgment entered for the plaintiff.

19. The respondent submitted that where a pleading raises triable issues which raise a prima facie defence, it should go to trial for determination. Such defence need not convince the court that the defence shall succeed. The respondent relied on the case of Job Kiloch v Nation Media Group Ltd, Salaba Agencies Ltd & Michael Riorio [2015]eKLR, where the Court of Appeal stated that: -'What then is a defence that raises no bona fide triable issues? a bona fide triable issue is any matter raised by the defendant that would require further interrogation by the court during a full trial. The Black’s Law dictionary defines the term 'triable' as “subject or liable to judicial examination and trial.' It therefore does not need to be an issue that would succeed, but just one that warrants further intervention by the court.'

20. It was submitted by the respondent that a triable issue is said to exist if there is a dispute in the facts, which dispute can only be resolved after ventilation in a full hearing. This is the position taken by the court in the case ofGiciem Construction Company v Amalgamated Trade & Services LLR No 103 (CAK), where the court stated that;'As a general principle, where a defendant shows that he has a fair case for defense or reasonable grounds for setting up a defense or even a fair probability that he has a bona fide defense, he ought to have leave to defend. Leave to defend must be given unless it is clear that there is no real substantial question to be tried; that there is no dispute as to the facts or law which raises a reasonable doubt that the plaintiff is entitled to judgment.'

21. The respondent contended that a bona fide triable issue need not be one that must succeed. This was stated by this court in the case of Olympic Escort International Co Ltd & 2 Others v Parminder Singh Sandhu & Another [2009]eKLR (Civil Appeal No 306 of 2002) in the following manner;'It is trite that, a triable issue is not necessarily one that the defendant would ultimately succeed on. It need only be bona fide.'

22. The respondent submitted that the respondent’s written statement of defence is not scandalous, vexatious, frivolous, or an abuse of the court process. She relied on the case of County Council of Nandi –vs- Ezekiel Kibet Rutto & 6 Others [2013]eKLR.

23. The respondent contended that the statement of defence raises triable issues which are not scandalous, vexatious, frivolous and an abuse of the court process and therefore warrants ventilation in a full trial. The respondent urged the court to dismiss the instant application with costs.

Analysis and determination 24. I have considered the applicant’s application, the supporting affidavit, the grounds of opposition, the written submissions filed by both parties and the cited authorities. I find that the only issue for determination by this honourable court is whether this court should proceed to strike out the defence and enter judgment for the plaintiff.

25. The guiding law on striking out of pleadings is provided for under order 2 rule 15(1) of the Civil Procedure Rules which stipulates as follows;'At any stage of the proceedings, the court may order to be struck out or amend any proceedings on grounds that:-a.It discloses no reasonable cause of action or defence 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 court process.'

26. The principles that guide courts in determining applications of this nature were set out in the case of DT Dobie & Company Kenya Limited –vs- Joseph Mbaria Muchina & Another[1980]eKLR, Madan JA, where it was stated 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.'

27. Similarly, in the case of Postal Corporation of Kenya v IT Inamdar & 2 Others[2004] 1 KLR359, the court stated that;'The law is now well settled that if the defence filed by a defendant raises even one bona fide triable issue, then the defendant must be given leave to defend.'

28. The court must be very reluctant to strike out a pleading as the same is draconian as it denies a party from accessing the courts so as to have their disputes resolved on merits. In the case of The Co-Operative Merchant Bank Ltd. –vs- George Fredrick Wekesa (Civil Appeal No 54 of 1999), the Court of Appeal stated as follows:'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.'

29. Again, it must be noted that jurisdiction to strike out pleadings is discretionary, which can only be exercised judiciously and with caution so as not to cause injustice to the other party. In the case of Yaya Towers Limited –vs- Trade Bank Limited (In Liquidation) [2000]eKLR, the court stated that:'A plaintiff (defendant) is entitled to pursue a claim in our courts however implausible and however improbable his chances of success. Unless the defendant (plaintiff) 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 to dismiss that, which is an abuse of the process of the court. It is a 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.'

30. A cursory perusal of the respondent’s statement of defence shows that it raises triable issues and infact it elicited a reply from the applicant. In particular paragraphs 5, 6, 7, 8, 9 and 10 of the statement of defence require further intervention of this honourable court. It is therefore proper that these issues that have been raised are canvassed and determined at a full trial and should not to be struck out at this stage of the proceedings.

31. TheConstitution under article 50(1), provides for fair hearing with regard to any dispute that has to be resolved in accordance with the law. It stipulates as follows:'Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.'

32. From the above provision of theConstitution, this court is under an obligation to ensure that justice is served to both parties and it can only be met if the respondent is given the opportunity to prosecute her case to conclusion and not dismissed at this preliminary stage.

33. The respondent’s statement of defence is not frivolous, scandalous or vexatious as alleged by the applicant. I find the same to be raising serious issues which requires further interrogation by this honourable court and this can only be possible in a full trial hearing once the parties adduce evidence.

34. In view of everything that I have stated above, I find the application dated August 13, 2021 to be without merit and I proceed to dismiss the same with costs to the respondent. The matter to be set down for pre-trial directions within 45 days.

Orders accordingly.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED IN NAIROBI THIS 18 TH DAY OF MAY,2022. DO CHEPKWONYJUDGEIn the presence of:Mr Gaithu counsel for PlaintiffNo appearance for DefendantCourt Assistant - Kevin