[2023] KEHC 24726 (KLR)

Njer v Kenya Commercial Bank & another (Civil Case 24 of 2018) [2023] KEHC 24726 (KLR) (3 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24726 (KLR)

Republic of Kenya

In the High Court at Eldoret

Civil Case 24 of 2018

JRA Wananda, J

November 3, 2023

Between

Richard Aketch Njer

Plaintiff

and

Kenya Commercial Bank

1st Defendant

Saddabri Auctioneers

2nd Defendant

Ruling

1. Before Court for determination are two Applications, one seeking to strikeout a Statement of Defence & Counterclaim and the other one seeking to withdraw one of the two Statements of Defence filed on behalf of the 1st Defendant and instead, retain one with a Counterclaim.

2. The 1st Application is the Notice of Motion dated 3/03/2023 filed by the Plaintiff on 5/03/2023 and seeks the following orders:i.That this Honourable Court do strike out the 1st Defendant’s Statement of Defence and Counterclaim dated 14th April 2023. ii.That the costs be borne in the suit.

3. The Application is filed through Messrs Maurice Oduor & Co. Advocates and is stated to be brought under Order 2 Rule 15(1)(d) and Order 8 Rule 2 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act and “all other enabling provisions of the law”. The grounds of the Application are as set out on the face thereon and the same is supported by the Affidavit sworn by the Plaintiff.

4. In the Affidavit, the Plaintiff deponed that he filed this suit on 18/06/2018, the Defendants entered appearance and filed their Defence Statements and all other Pleadings accompanying it, pleadings then closed in mid or late November, on 8/03/2022 when the matter came up in Court, the Defendant’s Advocate informed the Court that the negotiations that were being undertaken by the parties had stalled and so the Counsel requested that the suit be fixed for hearing, the Court obliged but allowed the parties to file any further “documents” and “statements”, pursuant to these directions, the 1st Defendant filed, among others, a Statement of Defence and Counterclaim dated 14/04/2022, there already existed a Statement of Defence and a further Defence was a nullity unless the 1st Defendant seeks to amend the previous Defence, the direction of the Court only allowed parties to file further documentary evidence and Witness Statements but no further Pleadings since the latter would require leave of the Court.

5. The 2nd Application is the Notice of Motion dated 26/04/2023 filed by the 1st Defendant on 27/04/2023 and seeks the following orders:i.The Defence dated 5th November 2022 be marked as withdrawn.ii.The 1st Defendant’s Defence and Counterclaim dated 14th April 2023 be deemed to be properly filed, and.iii.Costs in the Cause.

6. The Application is filed through Messrs G&A Advocates LLP and is stated to be brought under Section 1A and 3A of the Civil Procedure Act, Order 7 Rule 1 and Order 51 of the Civil Procedure Rules and “all other enabling provisions of the law”. The grounds of the Application are as set out on the face thereon and the same is supported by the Affidavit sworn by one Mwangi Kan’gu.

7. In his Affidavit, the said Mwangi Kang’u described himself as an Advocate seized of the matter and deponed that the 1st Defendant instructed the firm of Kalya & Co. Advocates to act for it in the suit, the said firm entered Appearance and filed the Statement of Defence dated 5/11/2028, in the course of the proceedings, it was discovered that the firm of Kalya & Co. was conflicted as it had participated in the perfection of the securities the subject in dispute in this suit, consequently the 1st Defendant instructed the firm of G&A Advocates LLP to take over the conduct of the matter, the filing of the Defence dated 14/04/2022 was done without knowledge of existence of the Defence dated 5/11/2018 filed by the erstwhile firm on record, the 1st Defendant now seeks to regularize the record by withdrawing the Defence dated 5/11/2018 and proceed with the one dated 14/04/2022.

1st Respondent’s Replying Affidavit 8. In opposing the 1st Application, the 1st Defendant on 27/04/2023 filed the Replying Affidavit sworn by one Lilian Sogo who described herself as the Respondent’s Head Counsel-Litigation. She basically stated the matters already deponed in the Supporting sworn by Mwangi Kang’u Advocate above.

Plaintiff’s Notice of Preliminary Objection 9. The Plaintiff also filed the Notice of Preliminary Objection dated 22/05/2023 against the 2nd Application, the one filed by the 1st Defendant. The contents of the Notice were that the Application, as drawn and filed, is incompetent, misconceived and an abuse of the Court process and that the Application seeks to withdraw an already filed Statement of Defence, replace it with a fresh one and at the same time include a Counterclaim, which is a procedure that is not known in law.

Hearing of the Applications 10. The two Applications being related, it was directed, and agreed by the parties, that the same be heard and determined together, they be canvassed by way of written Submissions and one consolidated Ruling be delivered for both. Pursuant thereto, the Plaintiff filed consolidated Submissions on 3/07/2023 relating to both the two Applications and also the Preliminary Objection. On its part, the 1st Defendant filed two sets of Submissions, both on 4/07/2023, one in opposition to the 1st Application and one in support of the 2nd Application.

Plaintiff’s Submissions 11. Counsel for the Plaintiff submitted that the process of substituting pleadings without seeking leave of the Court is not known in law, the 1st Defendant did not even seek leave to amend the pleadings, neither did it amend the same, instead it sought to substitute the pleadings in a process that would otherwise be prejudicial to the Plaintiff.

12. Counsel submitted that the principles guiding the striking out of pleadings were set out in the cases of DT Dobie & Company (K) Ltd vs Muchina [1982] KLR 1, Blue Shield Insurance Company Ltd vs Joseph Mboya Oguttu [2009] eKLR and Madison Insurance Company Limited v Augustine Kamanda Gitau [2020] eKLR. He submitted further that this is not a case whereby the Plaintiff is contesting filing of proper pleadings, it is a case whereby the 1st Defendant has decided to unilaterally substitute pleadings without seeking leave of Court to do so, the 1st Defendant is not filing the Defence for the first time, neither is it seeking to amend but strangely, filed another Defence and Counterclaim in total disregard to the existing Defence, striking out such unprocedurally filed pleadings whose filing is not known in law will not visit any prejudice upon the 1st Defendant, this matter has already been certified for hearing, the rationale behind this is the fact that striking out of a pleading and the exercise of the powers for summary procedure are draconian, coercive and drastic and therefore striking out a pleading must be done with tremendous caution because a litigant should never be driven from the seat of justice without being heard.

13. He cited the case of Prafulla Enterprises Ltd v Norlake Investments Ltd, Kisumu High Court Civil Case No. 145 of 1997 and added that in this instant case, an amendment would have served a better purpose as the same is provided in law. Counsel also cited the case of Francis Kamande v Vanguard Electrical Services Ltd, Civil Appeal No. 152 of 1996 and added that if no prima facie triable issue is brought out against the Plaintiff’s claim, the Court can enter summary judgment. Counsel further cited the case of Vaiwin Ltd v Rasikbi Manibhai Patel, Civil Appeal No. 248 of 1999, Odunga’s Digest on Civil Law and Procedure, Volume 4, 2nd Edition, 2010 and Wenlock v Moloney [1965] 2 ALL ER 871.

1st Defendants’ Submissions 14. As aforesaid, the 1st Defendant filed two sets of Submissions, in the one filed in support of the 2nd Application, Counsel submitted that the Application was filed seeking to regularize an inadvertent error or defect in proceedings, the Application has been brought pursuant to the oxygen principles as espoused under Section 1A and 3A of the Civil Procedure Act, the 1st Defendant invites the Court to exercise its judicial power in a manner that facilitates a just and proportionate disposal of disputes and that Section 3A grants the Court the discretion to “make such orders as may be necessary for the ends of justice. On the fundamental duty of the Court to do justice, he cited the case of Wachira Karani vs Bildad Wachira [2016] eKLR. He then also cited the cases of Philip Chemwolo & Another -vs- Augustine Kubende [1986] KLR and David Bundi -vs- Timothy Mwenda Muthee [2022] eKLR and submitted that though errors are made, it does not follow that a party should suffer the penalty of not having his case heard on merit, Section 1A and 3A of the Civil Procedure Act enjoins the Court to ensure that there is just determination of the dispute and the Court should always opt for the lower rather than the higher risk of injustice, the merits of the 1st Defendant’s case comes out strongly in the Defence and Counterclaim dated 14/04/2022, as such, equity so demands that the Applicant be granted an opportunity to present its proper case for the ends of justice to be met. He further cited the case of Stephen Boro Gitiha vs Family Finance Building Society and 3 Others [2009] eKLR and submitted that the overriding objectives overshadow all technicalities, precedents, rules and actions which are in conflict with it and whatever is in conflict with it must give way.

15. Regarding the Preliminary Objection filed by the Plaintiff, Counsel submitted that Order 51 of the Civil Procedure Rules bars a party from raising an objection merely on reason of failure to comply with the Rule or on a ground of technicality or want of form, the primary duty of the Court is to do justice, that duty cannot be fettered by procedural technicalities and that the Constitution under Article 159(2) urges Courts to do justice without undue regard to procedural technicalities.

16. In its second set of Submissions, in opposition to the 1st Application, the one filed by the Plaintiff, Counsel for the 1st Defendant submitted that striking out of pleadings is a draconian act which the Courts ought to exercise with utmost diligence and in the clearest of cases. He cited the case of Co-operative Merchant Bank Ltd vs George Fredrick Wekesa, Civil Appeal No. 54 of 1999 as cited in GBM Kariuki vs Nation Media Group Limited and 3 Others [2012] eKLR and submitted that filing of the second Defence was a clear case of an honest mistake and nothing close to or amounting to an abuse of the Court process, for a party to be found liable for abuse of Court process the Applicant must demonstrate that the Respondent has employed the judicial process in a manner that causes irritation, annoyance and prevention of administration of justice, the instant case is free from all these, the Respondent has handled the irregularity with utmost good faith, when Counsel realized the mistake, he sought indulgence from the Court to expunge the Defence dated 5/11/2018 which prayer was declined, he then tried to enter into a consent for compromise with the opposing Counsel which consent did not materialize, he then filed the present Application. Counsel cited the cases of Job Kilach vs Nation Media Group Ltd, Salaba Agencies Ltd & Michael Rono [2015] eKLR, Mercy Nduta Mwangi t/a Mwangi Ken’gara & Co. Advocates v Invesco Assurance Company Limited [2019] eKLR and Britam General Insurance vs Ukwala Agnes Ngungu [2019] eKLR.

Analysis & Determination 17. Upon considering the pleadings, responses thereto and the Submissions presented, I find the issue that arises for determination to be the following:“Whether the 1st Defendant’s Defence and Counterclaim filed subsequently when there was already a Defence filed earlier by the same party should be struck out or whether the 1st Defendant should, instead, be allowed to withdraw the earlier filed Defence”

18. I now proceed to analyze and determine the issue.

19. In determining the above question, it is important to look at the sequence of events leading up to the present Applications. The Plaintiff instituted this suit to challenge the 1st Defendants’ statutory power of sale and did so through the firm of Kalya & Co. Advocates which firm duly entered appearance and filed the Statement of Defence dated 5/11/2018. According to the 1st Defendant, it later transpired that the said firm had participated in the perfection of the securities which are the subject to the dispute in the present suit and was therefore in conflict of interest and could not continue participating in the suit. By reason thereof, the 1st Defendant replaced the said firm with Messrs G&A Advocates. The new Advocates, unknown to them that the earlier Advocates had already filed the Defence dated 5/11/2018, proceeded to file their own Defence dated 14/04/2022. There are therefore two Defences on record both filed on behalf of the 1st Defendant. It is the existence of these two parallel Defences on record that is now the subject in contention.

20. Striking out of pleadings has been discussed extensively in various decisions over time. For instance, in the case of The Co-Operative Merchant Bank Ltd. v 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.”

21. Further, the Court of Appeal, in the case of Blue Shield Insurance company Limied vs. Joseph Mboya Ogutu (2009) eKLR stated as follows,“The principles guiding the Court when considering such an application which seeks striking out of a pleading is now well settled. Madan J.A. (as he then was) in his judgment in the case of D.T. Dobie and Company (Kenya) Ltd vs Muchina (1982) KLR 1 discussed the issue at length and although what was before him was an application under Order 6 rule 13 (1) (a) which was seeking striking out a plaint on grounds that it did not disclose a reasonable cause of action against the defendant, he nonetheless dealt with broad principles which in effect covered all other aspects where striking out a pleading or part of a pleading is sought. It was held in that case inter alia as follows:-“The power to strike out should be exercised after the Court has considered all facts, but it must not embark on the merits of the case itself as this is solely reserved for the trial Judge. On an application to strike out pleadings, no opinion should be expressed as this would prejudice fair trial and would restrict the freedom of the trial Judge in disposing the case.”We too would not express our opinion on certain aspects of the matter before us. In that judgment, the learned Judge quoted Dankwerts L.J in the case of Cail Zeiss Stiftung vs Ranjuer & Keeler Ltd and others (No.3) (1970) ChpD 506, where the Lord Justice said:-“The power to strike out any pleading or any part of a pleading under this rule is not mandatory; but permissive and confers a discretionary jurisdiction to be exercised having regard to the quality and all the circumstances relating to the offending pleading.”We may add that like Madan J.A, said, the power to strike out a pleading which ends in driving a party from the judgment seat should be used very sparingly and only in cases where the pleading is shown to be clearly untenable.”

22. Although the Plaintiff has alleged that filing of the subsequent Defence prejudices him because it was filed without leave, he has not, in my view, demonstrated the alleged prejudice or the nature thereof. He has also not demonstrated any bad faith on the part of the 1st Defendant in the circumstances leading to filing of the two Defences. The 1st Defendant has also not demonstrated how the Plaintiff’s prayer to regularize the irregularity by withdrawing the earlier filed Defence will prejudice him. Further, although the Plaintiff alleges that withdrawal of a Defence and replacing it with another is a process unknown in law, he has on the flipside also not demonstrated what provisions of the law would be breached by such action and further, he has also not demonstrated that this Court does not have power to sanction such withdrawal and replacement.

23. The 1st Defendant contended that filing of the second Defence was a clear case of an honest mistake and not an abuse of the Court process, that it has handled the irregularity with utmost good faith, that when Counsel realized the mistake, he sought indulgence from the Court to expunge the Defence dated 5/11/2018 which prayer was declined, that he then tried to enter into a consent for compromise with the opposing Counsel which consent also did not materialize. This account has not been challenged by the Plaintiff.

24. Article 159(2) of the Constitution expressly obligates the Courts to ensure that “justice shall be administered without undue regard to procedural technicalities”. Clearly, the ground relied on in seeking to strike out the Defence is one premised on procedural technicalities. Considering the circumstances leading up to the filing of the two Defences, I am not satisfied that the ground suffices to warrant the striking out the Defence dated 14/04/2023. Doing so would not be in the interest of justice.

25. It is not upon the Court nor the Plaintiff to decide for the 1st Defendant whether the 1st Defendant should seek to amend the earlier filed Defence instead of replacing or substituting it with the subsequently filed one. If the 1st Defendant feels that its case would be better prosecuted by withdrawing the earlier Defence and replacing it rather than amend, so be it, it is all within the 1st Defendant’s rights as long it obtains the Court’s leave to do so.

26. It is also not upon the Court nor the Plaintiff to decide for the 1st Defendant which of the two Defences the 1st Defendant should withdraw or which one it should leave on record. If the 1st Defendant feels that the merits of its case is brought out more strongly in the subsequently filed Defence and Counterclaim, so be it. As long as the 1st Defendant leaves only one Defence on record and obtains leave to withdraw one, the Court cannot interfere.

27. In the circumstances, I find that the 1st Defendant’s Application was filed with the honest intention of regularizing an inadvertent error or defect in the proceedings. I agree with the 1st Defendant’s Counsel that the “oxygen” principle as espoused under Section 1A and 3A of the Civil Procedure Act requires the Court to exercise its judicial power in a manner that facilitates a just and proportionate disposal of disputes. Section 3A also grants the Court the discretion to “make such orders as may be necessary for the ends of justice”. I also agree with Counsel that though errors are committed, it does not follow that a party must always, as a result thereof, suffer the penalty of his pleadings being struck out. I take the view that, unless in exceptional circumstances, the overriding objectives of litigation should generally outweigh procedure technicalities.

Final Orders 28. In the premises, I issue the following orders;i.The Plaintiff’s Notice of Motion dated 3/03/2023 and Preliminary Objection dated 22/03/2023 are both dismissed.ii.The 1st Defendant’s Notice of Motion dated 26/04/2023 is allowediii.Consequently, the 1st Defendant’s Defence dated 5/11/2018 is hereby marked as withdrawn and expunged from the record and in its place and in substitution, the 1st Defendant’s Defence & Counterclaim dated 14/02/2022 is deemed to be properly filed and served.iv.The Plaintiff is at liberty to file a Reply to Defence in response to the 1st Defendant’s Defence & Counterclaim dated 14/02/2022 and Defence to Counterclaim, as well as Supplementary documents and Witness Statements, if necessary, within twenty-one (21) days from the date hereof.v.Costs of the Applications are awarded to the Plaintiff to be borne by the 1st Defendant.

DELIVERED, DATED AND SIGNED AT ELDORET THIS 3RD DAY OF NOVEMBER 2023…………………WANANDA J. R. ANUROJUDGE