[2022] KEHC 17038 (KLR)

Moser v Khan & another (Civil Case 85 of 2019) [2022] KEHC 17038 (KLR) (13 May 2022) (Ruling)

Neutral citation: [2022] KEHC 17038 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Case 85 of 2019

MN Mwangi, J

May 13, 2022

Between

Bernhard Moser

Plaintiff

and

Sabia Khan

1st Defendant

Neel Akber (Tycoon News)

2nd Defendant

Ruling

1. The 1st defendant through a notice of motion dated January 27, 2020 brought under the provisions of orders 2 rule 15(1)(a), (b) & (d) of the Civil Procedure Rules, 2010, seeks the following orders-i.That the plaint herein be struck out as against the 1st defendant; andii.That the costs of this application and of the suit be paid by the plaintiff.

2. The motion is anchored on the grounds on the face of it and on the affidavit sworn by the 1st defendant on January 27, 2020. The grounds are that the impugned publication was allegedly made by the 2nd defendant and not herself and that there is absolutely no basis upon which the suit can be sustained against her for the reason that the 2nd defendant is not her agent, she has never met the 2nd defendant, she has never posted or given anything to the 2nd defendant about the plaintiff, and she has no control over what is posted on the alleged Facebook account. She claimed that she cannot be liable for any posting made by the 2nd defendant.

3. The 1st defendant averred that she has no obligation to substantiate the Facebook postings made by the 2nd defendant and that the suit against her is therefore malicious, frivolous, scandalous and ought to be struck out.

4. In response to the instant application, the plaintiff filed grounds of opposition dated October 26, 2020, based on the following-i.That the application is misconceived and fatally defective;ii.That the application is incompetent as it is based on affidavit evidence which is not admissible; andiii.That it has been pleaded in the plaint that the 1st and 2nd defendants caused to be published false, unconfirmed and unsubstantiated statements about the plaintiff that have injured the plaintiff’s character and reputation. The issue needs to go to trial.

5. Parties filed written submissions in disposing of this application. The 1st defendant’s submissions were filed by the law firm of Oluga & Company Advocates on March 19, 2021 and April 28, 2021, while the plaintiff’s submissions were filed by the law firm of Kamoti Omollo & Company Advocates on April 20, 2021.

6. Mr Oluga, learned Counsel for the 1st defendant submitted that the 1st and 2nd grounds have no particulars and as such, the 1st defendant has been denied the opportunity to respond thereto. He urged this court to ignore the said grounds.

7. He submitted that it is only an application brought under order 2 rule 15(1) (a) of the Civil Procedure Rulesthat requires no evidence, but the instant application has been brought on assorted grounds, hence evidence is admissible. He further submitted that no allegation had been made that the 1st defendant published the statements or instructed the 2nd defendant to publish them. In making reference to paragraphs 12 and 13 of the plaint, Mr Oluga stated that the same are general sweeping averments attributing the publication to both the 1st and 2nd defendants. He indicated that paragraph 6 of the 1st defendant’s pleading that she had nothing to do with the posting of the statement on social media had not been controverted by the plaintiff who did not file a reply to the defence.

8. Mr Omolo, learned Counsel for the plaintiff submitted that the 1st defendant had flouted the mandatory provisions of the law by the filing of an affidavit in support of an application under order 2 rule 15(1)(a) & (2) of the Civil Procedure Rulesand that one cannot make an omnibus application under order 2 rule 15(1)(a), (b) and (d) of the Civil Procedure Rules. He relied on the decision inMohamed Mohamed Al-Amin and Abdulpazak Omar Al-Amin v Mohamed Abdalla Mohamed Mombasa HCCC No 757 of 1995 where the court held that order 6 rule 13(1)(a) of the then Civil Procedure Rules is clear that no evidence should be adduced when a party is proceeding under the said Rule, which in effect means that a party has to choose whether he wants to come to court under the other sub-rules and proceed to file affidavits in support of the application but one cannot mix the sub-rules to avoid being specific.

9. In a rejoinder, Mr Oluga submitted that the decision in Mohamed Mohamed Al-Amin and Abdulpazak Omar Al-Amin v Mohamed Abdalla Mohamed(supra) was no longer good law having been decided way back on March 22, 2002 before the promulgation of the Constitution and the Civil Procedure Act, 2010. He submitted that the new Constitution and the Civil Procedure Act, 2010 introduced article 159 and sections 1A and 1B of the Civil Procedure Act, which now abhor justice based on procedural technicalities.

10. He cited the finding in Shayona Timber Limited v Kenya National Highway Authority[2013] eKLR where the court held that non-compliance with the regulations had not occasioned any prejudice to the respondent in accordance with the letter and spirit of section 1A of the Civil Procedure Act and article 159(2)(d) of theConstitution, and that the court therein declined to declare the application fatally defective.

Determination 11. I have considered the application herein, the grounds in support thereof, and those in opposition. I have also considered the rival submissions filed by the parties’ Advocates and the decisions relied on. The 1st defendant moved this court under order 2 rule 15 of the Civil Procedure Rules. Order 2 rule 15(1) and (2) of the Civil Procedure Rules states 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.”(2)No evidence shall be admissible on an application under sub rule (1) (a) but the application shall state concisely the grounds on which it is made.” (emphasis added).

12. The notice of motion dated January 27, 2020, seeks to strike out the suit against the 1st defendant for not disclosing a reasonable cause of action as the first ground. The Counsel for the 1st defendant indicated that he made an omnibus application and reiterated that he had the right to bring forth affidavit evidence.

13. The plaintiff has challenged the competence of the applicant’s application by stating that the said application has flouted mandatory provisions of the law. In Olympic Escort International Co Ltd & 2 others v Parminder Singh Sandhu & another [2009] eKLR, the Court of Appeal when considering an appeal where one of the issues arose from an order made under the former order VI rule 13(i)(a) of the Civil Procedure Rules held that-"We think for our part that it was inappropriate to combine the two prayers, one of which requires evidence before a decision is made and one that does not. There was affidavit evidence on record and it was in fact considered by the learned judge. It matters not therefore that the applicant had stated that the affidavits should not be considered. As the prayer sought under order 6 rule 13 (1) (a) was in contravention of sub rule (2) of that order, it was not for consideration and we would have similarly struck out the application on that score."

14. In Taj Mall Limited v Hellen Njambi Mbugua [2015] eKLR, the court held:“… since our legislature in its wisdom decided that the grounds in rule 15(1) of order 2 are in the alternative and that three (3) out of four (4) of them, that is rule 15 (1) (b) (c) and (d) may be based on evidence whilst the one under rule 15 (1) (a) should not, I do hold that whilst a party can bring an application combining the grounds in rule 15 (1) (b) (c) and (d) – such an application cannot and should not be brought with a ground under rule 15 (1) (a). This is so because, if those grounds are combined, there would definitely be prejudice in that the court would have to look at the evidence produced in support of the grounds under sub rule (1) (b) (c) and (d) yet sub rule (2) has specifically barred the court from considering any evidence once an application under rule 15(1) (a) is up for consideration. Applying the rule of interpretation that a latter provision amends or varies an earlier provision, I hold that the intention of the legislature in enacting rule 15(2) was that if an application is brought to strike out a pleading for disclosing no reasonable cause of action or defence, no evidence at all shall be adduced in support of such an application. That is so even if any of the grounds thereon are under order 15 rule (1) (b) (c) and (d). In my view, prejudice must be guarded against and it will be very difficult for the court to consider the other grounds based on the evidence produced then disabuse itself of that evidence when considering the ground of disclosing no reasonable cause of action under rule 15 (1) (a).”

14. I am in consonance with the above position of the law, and I therefore hold that it was inappropriate for the 1st defendant to file an omnibus application under order 2 rule 15(1)(a)(b) and (d) the Civil Procedure Rules, which gave her application no specificity. An application brought under order 2 rule 15(1) (a) of the Civil Procedure Rules does not require affidavit evidence as per the mandatory provisions of order 2 rule 15(2) of the said Rules, whereas an application under order 2 rule 15(b) and (d) of the Civil Procedure Rules which she also cited in her application, calls for evidence.

15. On that account, and applying the principles in the decisions cited herein to the present circumstances, the conclusion I come to is that the application by the 1st defendant is fatally defective, lacks merit and it is hereby dismissed. Costs are awarded to the plaintiff.

DELIVERED, DATED, AND SIGNED VIRTUALLY AT MOMBASA THIS 13 TH DAY OF MAY, 2022. Ruling delivered through Teams Online Platform.NJOKI MWANGIJUDGEIn the presence of-Ms Ogejoh holding brief for Mr. Oluga for the 1st defendant/applicantMr. V. Omollo for the plaintiff/respondentMr. Oliver Mususndi – Court Assistant.