https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/494

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT AT MOMBASA** **MAGISTRATE COURT CIVIL** **MCCC NO. E1557 OF 2025** **NYANJE NDAGO NDIMIRO (Suing as the Administrator of the Estate of** **RASI NDAGO NDIMIRO.............................................................................PLAINTIFF** **VERSUS** **BERNARD ODHIAMBO OKETCH......................................................1ST DEFENDANT** **MOMBASA PORT CO-OPERATIVE & CREDIT LTD…………..………2ND DEFENDANT** **RULING** 1. Before the Court is the Notice of Motion dated 7th April 2026 by the 2nd Defendant, brought under Sections 1A, 1B and 3A of the Civil Procedure Act, Order 2 Rule 15(1)(b), (c) and (d), Order 51 Rule 1 of the Civil Procedure Rules and Article 159(2) of the Constitution. The Applicant seeks principally that its name be struck out from these proceedings with costs. 2. The application is supported by the affidavits of Boaz Omwansa sworn on 7th April 2026 and 26th June 2026. The Plaintiff opposes the application through the Replying Affidavit sworn on 26th May 2026. Parties also filed written submissions. **Applicant's Case** 1. The Applicant contends that it is merely a financier of Motor Vehicle Registration No. KCC 233V, the subject motor vehicle in this suit. It submits that the 1st Defendant, being its member, obtained a loan facility secured by, among other things, the said motor vehicle. The Applicant argues that its interest was purely financial, intended to secure repayment of the loan, and that it neither possessed, managed nor exercised any control over the vehicle. 2. The Applicant further contends that the NTSA records expressly indicate it as a financier and that no particulars of negligence or vicarious liability have been pleaded against it. It therefore argues that no reasonable cause of action has been disclosed against it and that it ought to be struck out from the proceedings. 3. In support of its position, the Applicant relies on Ali Abdi Dere v Hash Hauliers Limited & Another (2018) eKLR, Ormrod v Crosville Motor Services Ltd [1954] 2 All ER 753, Jane Wairimu Turanta v Githae John Vickery & 2 Others (2013) eKLR, among other authorities. **Plaintiff's Case** 1. The Plaintiff opposes the application on the basis that the motor vehicle is jointly registered in the names of the 1st Defendant and the Applicant. He contends that any determination in the suit is likely to affect the Applicant and that the Applicant has therefore been properly joined. 2. The Plaintiff further submits that whether the Applicant bears liability is a matter that ought to be determined after hearing evidence at trial and not through a preliminary application. According to the Plaintiff, the application is intended to delay the hearing of the suit. **Issue for Determination** 1. The sole issue for determination is: Whether the 2nd Defendant has established sufficient grounds to warrant striking out the suit against it. **Analysis** 1. The principles governing striking out pleadings are now well settled. The jurisdiction is draconian and ought to be exercised sparingly and only in the clearest of cases. In D.T. Dobie & Company (Kenya) Ltd v Muchina [1982] KLR 1, the Court of Appeal 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 is beyond redemption even by amendment. 2. The Applicant's case is founded upon its assertion that it is merely a financier. Indeed, the loan documents exhibited demonstrate that the 1st Defendant borrowed funds from the Applicant and that the subject motor vehicle was offered as security. The NTSA records similarly indicate that the Applicant was recorded as financier while the 1st Defendant remained the registered owner. 3. However, the Plaintiff's suit is founded upon the fact that the Applicant appears in the registration records relating to the subject vehicle and contends that the Applicant bears liability arising from that relationship. Whether that registration merely secured the Applicant's financial interest or whether it gives rise to any legal responsibility is not a question capable of being conclusively determined solely upon affidavit evidence. 4. The Applicant has invited the Court to make definitive findings regarding the legal effect of its registration as financier and the absence of control over the vehicle. Those are matters that may require evaluation of evidence and, if necessary, oral testimony. 5. The Plaintiff has also pleaded that the Applicant is a co-owner of the motor vehicle. Whether that allegation ultimately succeeds is a matter for trial. At this interlocutory stage, the Court is not called upon to determine liability but only whether the Plaintiff has disclosed an arguable case worthy of being heard. 6. The authorities relied upon by the Applicant, including Ali Abdi Dere v Hash Hauliers Limited & Another (2018) eKLR, emphasise that a financier who exercises no control over a motor vehicle may ultimately escape liability. However, those authorities do not establish an inflexible rule that every financier must invariably be struck out before trial. Each case depends upon its pleadings and evidence. 7. The Court is persuaded that the issues raised by the Applicant go to the merits of the Plaintiff's claim rather than to the competence of the suit itself. Determining whether the Applicant exercised sufficient control, whether any agency relationship existed, or whether liability can attach notwithstanding its status as financier, are matters more appropriately resolved upon a full hearing. 8. Striking out a party denies a litigant the opportunity to ventilate his case. Given the well-established caution with which courts exercise this jurisdiction, this Court is not satisfied that this is one of those plain and obvious cases warranting summary termination of the suit against the Applicant. **Disposition** 1. Accordingly, the Court finds that the Notice of Motion dated 7th April 2026 lacks merit. 2. The Court therefore orders: 3. The Notice of Motion dated 7th April 2026 is dismissed. 4. The 2nd Defendant shall remain a party to these proceedings pending the hearing and determination of the suit on its merits. 5. The costs of the application shall abide the outcome of the suit. It is so ordered. **DELIVERED VIA MICROSOFT TEAMS AT MOMBASA THIS 30TH JULY 2026.** **………………………..** **HON.E.M. MWAMUYE** **SENIOR RESIDENT MAGISTRATE**