[2011] KEHC 1520 (KLR)
The court held that the order issued on 6th February, 2009 did not contemplate the striking out or dismissal of the suit in the event of non-compliance with the conditions set therein. The court emphasized that striking out pleadings is a drastic remedy to be used sparingly and only in clear cases. Despite the...
Source-derived case information.
- Citation
- [2011] KEHC 1520 (KLR)
- Parties
- Plaintiff: Njowamu Construction Co. Ltd; Plaintiff: Stephen Njoroge Muhinja; Defendant: Samuel Ngigi Kiarie
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 382 of 2008
- Procedural Posture
- Chamber Summons / Ruling on Application to Strike Out Defence and Counterclaim
- Outcome
- application dismissed with costs to the defendant
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Striking Out Pleadings, Abuse of Process, Injunctions, Purchase Price Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Njowamu Construction Co. Ltd
Plaintiff
Stephen Njoroge Muhinja
Plaintiff
Samuel Ngigi Kiarie
Defendant
Procedural Posture
Chamber Summons / Ruling on Application to Strike Out Defence and Counterclaim
Legal Issues
- 1 Whether the defendant's defence and counterclaim should be struck out as scandalous, frivolous, vexatious, or an abuse of court process.
- 2 Whether non-compliance with prior court orders warranted striking out the pleadings.
Ratio Decidendi
The court held that the order issued on 6th February, 2009 did not contemplate the striking out or dismissal of the suit in the event of non-compliance with the conditions set therein. The court emphasized that striking out pleadings is a drastic remedy to be used sparingly and only in clear cases. Despite the plaintiffs' allegations regarding the defendant's conduct, the court found that the defence and counterclaim, however weak, should be allowed to proceed to hearing so that the defendant may have his day in court. The application to strike out the defence and counterclaim was therefore found to lack merit and was dismissed with costs to the defendant.
Court Disposition
application dismissed with costs to the defendant
Orders
- The application to strike out the defence and counterclaim is dismissed with costs to the defendant.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
ELC NO. 382 OF 2008
NJOWAMU CONSTRUCTION CO. LTD …………................……1ST PLAINTIFF
STEPHEN NJOROGE MUHINJA…………….................………… 2ND PLAINTIFF
VERSUS
SAMUEL NGIGI KIARIE ………………....................…………………DEFENDANT
RULING
This is an application by way of Chamber Summons under Section 3A of the Civil Procedure Act and Order 6 Rule 13 (1) (b)(c) and (d) and 16 of the Civil Procedure Rules for orders that the defendant’s defence and counterclaim dated 11th September, 2008 be struck out as being scandalous, frivolous or vexatious as it may prejudice, embarrass or delay the fair trial of the suit herein, or is an abuse of the process of the court.
The application is supported by an affidavit sworn by Stephen Njoroge Muhinja who is the 2nd plaintiff and grounds set therein. The application is opposed and both learned counsel have filed written submissions. The court on 6th February, 2009 gave conditions on an injunction application brought by the plaintiff to the effect that the plaintiffs shall pay the balance of the purchase price of Kshs. 4,500,000/= within 21 days to the credit of a interest bearing account in the joint names operated jointly by the advocates on record for both the plaintiffs and the defendant. There was also an order that the plaintiffs be paying Kshs. 20,000/= on account of rent payable to the defendant into the said account. In default of either or both conditions within the stipulated time the orders of temporary injunction issued shall lapse automatically and stand vacated.
The plaintiffs allege that they forwarded the cheque to the advocate for the defendant but the defendant has breached the steps to facilitate the opening of the account. It is clear to me that, if the court intended that the suit be dismissed or struck out in the event of failure of either of these parties to comply with the conditions set out above, it would have said so. That it did not say so means
that ,the striking out the suit was not conteplated in that order.
I also bear in mind that the striking out of any pleading is a drastic measure which should be applied sparingly. However weak the defence and counterclaim may be, the defendant should have his day in court. I note that the pleadings herein are closed and that the parties should move forward to comply with the Civil Procedure Rules to facilitate expeditious disposal of this case. The bottom line is that this application lacks merit and is therefore dismissed with costs to the defendant.
Orders accordingly.
Dated, signed and delivered at Nairobi this 6th Day of July, 2011
A.MBOGHOLI MSAGHA
JUDGE