https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7413

Ng’ang’a t/a Gacheru & Company Advocates v Gitere (Civil Case E275 of 2025) [2026] KEHC 7413 (KLR) (Civ) (7 May 2026) (Ruling) Neutral citation: [2026] KEHC 7413 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Case E275 of 2025 SN Mutuku, J May 7, 2026 Between Peter Gacheru Ng’ang’a t/a Gacheru & Company Advocates Plaintiff and Anne Wanjiru Gitere Defendant Ruling The Application 1.By a Notice of Motion dated 24th November 2025, (the Application) Peter Gacheru Ng’ang’a t/a Gacheru Ng’ang’a & Company Advocates (the Applicant) has approached this court seeking orders to strike out the Statement of Defence filed by Anne Wanjiru Gitere (the Defendant) and entry of judgment for the Applicant; or in the alternative, that this Honourable Court be pleased to enter judgment on admission for the Applicant in the sum of Kshs 15,000,000 with interest at court rates from the date of filing the suit until payment in full and costs. The Applicant further seeks, in the alternative, that this Honourable Court be pleased to enter judgment on admission for the Applicant in the sum of Kshs 13,500,000 together with interest at court rates from the date of filing of this suit till payment in full and costs. The applicant also seeks costs of the application. 2.The Applicant has advanced grounds to support the Application found on the body of the Application and in the Supporting Affidavit sworn by Peter Gacheru Ng’ang’a on the 24th November 2025 that the Statement of Defence dated 11th November 2025 does not disclose any reasonable grounds of defence, is scandalous, vexatious and frivolous and is only meant to prejudice, embarrass and delay the trial and further that it is an abuse of the court process in that the Defendant admitted the existence of the agreement and that fees are due in accordance with the agreement. 3.In the Supporting Affidavit, it is deposed that the Applicant acted for the Defendant and her brother Samuel Mburu Gitere in various court matters as specifically shown under paragraph 9 of the Supporting Affidavit; that the properties in the court cases were estimated to be over Kshs 6 billion; that the High Court Succession Cause No. 265 of 2008 was highly contested; that on 18th April 2017, the Defendant and her brother entered into an agreement on fees (retainer) pursuant to Section 45 of the Advocates Act where the client was required to deposit Kshs 50,000 on instructing the advocate, which amount was paid; that thereafter, the client was required to pay Kshs 450,000 once the client starts to get monthly subsistence allowance form the estate as ordered by the consent of 24th September 2014 and that upon the distribution of the estate, the clients were required to transfer to the Advocate three (3) of their inherited three-bedroom apartments on LR No. 21070 (IR No. 81850) (Loresho Green Apartments) or alternatively, if the apartments are not available, an equivalent property or amount of money, as remuneration to the Advocate. 4.It was further deposed that the reason for entering into this agreement was because the Defendant and her brother did not have money at the time to finance the litigation and that the Advocate performed his part of the bargain but the Defendant and her brother failed to honour their part upon getting the distribution of the estate worth Kshs 912,000,000. 5.It was deposed that the legal fees are now due and that this has been admitted by the Defendant as can be exhibited through various discussions and correspondences. It is deposed that the Defendant has admitted that the Applicant is entitled to his fees. He attached email correspondence as Annexure PGN10 and PGN11 to support the claim that the admission. The Replying Affidavit 6.The Application has been opposed by the Defendant through her Replying Affidavit sworn on 22nd January 2026 in which she has deposed that her Defence has raised triable issues as to whether the Plaintiff can sustain a suit against her personally based on a joint agreement between the Plaintiff, the Defendant and her brother Samuel Mburu Gitere and whether this suit can be sustained against her alone whereas the agreement on paragraph 4 states that refers to “joint instructions and clients. 7.The Defendant has further deposed that the Plaintiff did not advise them that the fees for administrators of the Estate are payable by the Estate and not individually; that the work has not been completed in order to vest the properties on the Defendant; that the instructions to the Plaintiff were jointly given and that the instructions to the Plaintiff were given on behalf of the Estate and that th admitted amount, Kshs 7,000,000 paid to the Plaintiff was paid on account of joint instructions between the Defendant and her brother. Submissions 8.This Application was canvassed by way of written submissions. In support of the Application, the Plaintiff through his submissions dated 12/2/2026, gave the background of the claim and the Defence raised by the Defendant and submitted that the Defence is frivolous and vexatious for the reason that the Defendant and her brother are bound by the terms of the contract and that her brother Samuel Mburu Gitere has already accepted his obligation leaving the Defendant and that where the contract places joint obligations to two parties like in the instant case, then a party is at liberty to sue one of them. 9.The Plaintiff cited Order 1 Rule 6 of the Civil Procedure Rules (CPR) to emphasize that he was within his rights to sue the Defendant alone and that the Defendant is at liberty to enjoin the brother to these proceedings if she has a claim against him. 10.It was submitted that contrary to the statement that the Plaintiff had not completed his obligation in under Clause 3 of the agreement, this is not the case as it has been admitted through correspondence that he had completed his work and that the Defendant sought valuation to be done to determine the market value of the three apartments for purposes of fees payable to the Plaintiff. 11.It was submitted that the Defendant has admitted the claim in her statement of defence at paragraph 22. 12.On the issue of admission of the claim, the Plaintiff submitted relied on Order 13 Rule 2 of the CPR which provides that: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 for such judgment or order as upon such admissions 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 Plaintiff cited Njau v Ngungu (Commercial Civil Case E012 of 2024 [2025] KEHC 3348 (KLR) (20 March 2025) (Ruling) where the court stated thus:“………….. The principle applicable in judgment on admission is that the admission must be very clear and unequivocal on a plane perusal of the admission. The admission in the sense of Order 13 Rule 2 of the Civil Procedure Rules is not one, which requires copious interpretation or material to discern. It must be plainly and readily discernible. In such clear admission, the J. B. Havelock J, stated in the case of 747 Freighter Conversion LLC v Jet One Airways Kenya Ltd & 3 others HCCC No. 445 of 2012, there is no point in letting a matter go for trial for there is nothing to be gained…………” 14.The Plaintiff cited other authorities on this issue of admissions as captured in his submissions, which authorities I have considered. He submitted that the admissions in this case are clear and unequivocal. He referred this court to various correspondences where admission for Kshs 15,000,000 is alleged, being the email dated 8/10/2025 and 14/10/2025. 15.In respect of the admission for Kshs 13,500,000, the Plaintiff relied on annexure PGN10, a valuation report dated 13/8/2025 to confirm that the Defendant admitted this amount and submitted that the Defendant insisted on the 2014 valuation and admitted and offered Kshs 13,500,000 as her share of legal fees and that the issues raised in the defence are an afterthought, a sham, vexatious, scandalous and frivolous, meant to abuse the court process. 16.The Defendant, in her submissions raised two issues following issues:i.Whether the defence raises triable issues.ii.Whether there is a clear and unequivocal admission of the claim by the defendant. 17.On the first issue, the Defendant placed reliance on Order 2 Rule 15 of the Civil Procedure Rules and submitted that she has opposed the application on the grounds that her defence raises triable issues. She relied on Jubilee Insurance Co. Ltd v. Grace Anyona Mbinda [2016] eKLR in which the court cited Saudi Arabian Airlines Corporation v. Premium Petroleum Co. Ltd [2014] eKLR where the court stated that:“I need not re-invent the wheel on the subject of striking out a defence. A great number of judicial decisions have now settled the legal principles which should guide the Court in determining whether to strike out a pleading. The power to strike out a suit or defence should be used sparingly and only on the clearest of cases where the impugned pleading is “demurer of something worse than a demurer” beyond redemption and not curable by even an amendment. Thirdly, in case of a defence, the court must be convinced upon looking at the defence, that it is a sham; it raises no bona fide triable issue worth a trial by the court. And a triable issue need not be one which will succeed but one that passes the Shedridan J Test In Patel V E.a. Cargo Handling Services Ltd. [1974] E.A. 75 at p. 76 (Duffus P.) that “… a triable issue… is an issue which raises a prima facie defence and which should go to trial for adjudication.” Therefore, on applying the test, a defence which is a sham should be struck out straight away.” 18.She submitted that she has denied all the allegations made against her; that the Defence herein raises triable issues and has not admitted the indebtness and that she has raised the issue whether the Defendant can be sued alone in a claim based on an agreement entered between the Plaintiff and the Defendant and her brother. 19.The Defendant also relied on Job Kilach v Nation Media Group Ltd, Salaba Agencies Ltd & Michael Rono [2015] KECA 846 (KLR), where the court stated thus:“Before the grant of summary judgment, the court must satisfy itself that there are no triable issues raised by the defendant, either in his statement of defence or in the affidavit in opposition to the application for summary judgment or in any other manner.” 20.On the second issue, the Defendant relied on Order 13 Rule 2 of the Civil Procedure Rules and placed reliance on Choitram & another v Nazari (Civil Appeal 8 of 1982) [1984] KECA 47 (KLR) (20 January 1984) (Judgment) and submitted that for the Court to enter judgment on admission, the admissions must be clear and unequivocal; that in the agreement relied on in this case, it is between the Plaintiff and the Defendant and her brother and that the Defendant has denied the claim and stated that the Plaintiff cannot sever the agreement and apportion payment to one person and sue the other in a joint agreement. 21.The Defendant submitted further that the issues raised by the Defendant cannot be determined summarily by way of an application. She submitted that the court should only exercise its jurisdiction to strike in obvious cases where the defence raises no triable issues and urged the court to dismiss the application and allow the case to proceed to trial. Analysis and determination 22.I have considered the application and the Replying Affidavit in opposition. I have also considered the submissions of the parties and the authorities relied on. To my mind the following issues arise for determination:i.Whether the Defence filed herein has raised triable issues.ii.Whether there is admission by the Defendant. 23.The application before me seeks to strike out the Defence filed herein for the reasons that the defence is not reasonable; that it is scandalous, frivolous, vexatious, a sham and is otherwise an abuse of the court process. In the alternative, the application seeks entry of judgment on admission. 24.Striking out pleadings is governed by Order 2 Rule 15 CPR. Under sub rule 1 of Rule 15 of that Order, it is provided that:(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 it may prejudice, embarrass or delay the fair trial of the action; or(c)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. 25.The Plaintiff has relied on Mpaka Road Development Limited v. Kana [2004] 1 EA 161 to emphasize the definition of what amounts scandalous, frivolous, vexatious, sham and abuse of court pleading. In that case the Court states thus:“…A pleading is frivolous if it lacks seriousness. It would be vexatious if it annoys or tends to annoy. It would annoy or tend to annoy if it is not serous or contains scandalous matter, irrelevant to the action of defence. A scandalous and/or frivolous pleading is ipso facto vexatious." 26.On her part, the Defendant contents that her defence is not any of those definitions above. Instead, her defence is serious as it raises triable issues in that in the defence denies all the Plaintiff’s claims and raises issues that can only be resolved in a full trial. She has relied on the authorities shown above to urge the court to find that the defence raises triable issues. 27.I have read the Statement of Defence dated 11th November 2025. From the outset, the Defendant stated that she instructed the Plaintiff jointly with her brother as the administrators of the two estates of Gitere Kahura and Mary Nyokabi Gitere and not individually and that the claim should be against the two estates and not individual beneficiaries. She stated further that the distribution of the estate is not complete and that the value of the estate, as claimed by the Plaintiff, is denied; that some properties are still charged to the bank. 28.I have considered this issue. I am guided by the findings of the Court in Saudi Arabian Airlines case, above, that the power to strike out a suit or defence should be “used sparingly and only on the clearest of cases where the impugned pleading is beyond redemption”. Further, I am not persuaded that the defence raised by the Defendant “discloses no reasonable cause of action or defence in law; or is scandalous, frivolous or vexatious; or it may prejudice, embarrass or delay the fair trial of the action; or is otherwise an abuse of the process of the court” as provided under Order 2 Rule 15 (1) CPR. 29.My careful analysis of the material placed before me leads me to the conclusion that the defence raises triable issues that can only be determined fully after a full trial. In so finding, I am aware that this will not prejudice the Plaintiff since he has not been denied a chance to ventilate his claim. 30.On the issue of admissions, I have considered the rival arguments by the parties. I have also read and considered the authorities relied on. In Choitram & another v Nazari case, the Court expressed itself as follows in respect to admissions:“For the purpose of order XII rule 6, (Order 13 Rule 2) admissions can be express or implied either on the pleadings or otherwise, eg in correspondence. Admissions have to be plain and obvious, ………. and clearly readable because they may result in judgment being entered. They must be obvious on the face of them without requiring a magnifying glass to ascertain their meaning. Much depends upon the language used. The admissions must leave no room for doubt that the parties passed out of the stage of negotiations onto a definite contract.” 31.I have subjected the arguments of the parties on this issue of admissions and wish to pose the question as to whether the admissions alleged here can be said to be unequivocal. I have read the excerpts of the correspondence said to emanate from the Defendant. While I note the discussion in those correspondences relate to payment of debts with the Defendant seeming to make offers to settle, it is my considered view that given the denial by the Defendant and the issues being raised, as well as my finding above that the Defence raises trial issues, it is my view that the court proceeds to hear the parties in a full trial to enable the determination of all the issues before this court can render its final judgment. 32.For the above reasons, the Notice of Motion dated 24th November 2025 fails and is hereby dismissed. Costs of this application shall be in the cause. 33.It is so ordered. DATED, SIGNED AND DELIVERED THIS 7TH MAY 2026.S. N. MUTUKUJUDGE