[2016] KEHC 8608 (KLR)

REPUBLICOF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

COMMERCIAL & ADMIRALTY DIVISION

CIVIL CASE NO. 416 OF 2015

PINDORIA HOLDINGS LIMITED.……………...........…...PLAINTIFF

-VERSUS-

TYL LIMITED………………………………………..…DEFENDANT

RULING

1. The application before the Court is the Plaintiff’s Notice of Motion dated 22nd October, 2015and filed in Court on 23rdOctober, 2015. It is expressed to be brought under the provisions of Sections 3Aof the Civil Procedure Act as well as Order 2 Rule15 (1) (a) and (c), Order 51 rule 1(d) and Order 7 rule 5of the Civil Procedure Rules, 2010. The Plaintiff sought for the followingorders:-

1) THAT the Defence dated 23rd September, 2015 and filed on the same date be struck out with costs.

2) THAT Judgment be entered for the Plaintiff against the Defendant in terms of the prayers set out in the Plaint.

3) THAT costs of this application be provided for.

2. The application is based on the grounds set out therein and is supported by the Affidavit ofone of the Plaintiff’s director, PREMJI V PINDORIAand sworn on 22nd October, 2015.

3. The Plaintiff instituted the present suit against the Defendant vide its Plaint dated 27th August, 2015. The brief facts are that the Plaintiff and the Defendant entered into an agreement dated 10th May, 2010 whereby the Plaintiff, at the Defendant’s own request, agreed to carry out the construction of a residential house at the Defendant’s premises at Muthaiga for a consideration of Kshs. 96,214,669/=. The Plaintiff avers that it carried out, completed and maintained the works in accordance with the contract and to the satisfaction of the Defendant, but that, in breach of the terms of the agreement, the Defendant defaulted in payment of part of the contract price certified by the project Architect and which sum stood at Kshs. 52,629,527. 78 as at 2nd June, 2015. The Plaintiff therefore filed this suit praying for judgment against the Defendant for the said sum of Kshs. 52,629,527. 78together with interest thereon at 18% per annum till payment in full.

4. In response to the Plaintiff’s Claim the Defendant filed its Defence dated 23rd September, 2015 on even date. It essentially denied the existence of the agreement between the parties and the claim by the Plaintiff. This is the Defence that the Plaintiff seeks to have struck out on the ground that it is a mere denial and does not sufficiently rebut and/or answer to the Plaintiff’s pleadings and documents filed in support of the claim. The Plaintiff further avers that the said Defence is frivolous and vexatious and that it is merely intended to delay the fair determination of it claim.

5. It is also the Plaintiff’s case that the Defendant has failed to file its witness statements and bundle of documents in support of its defence.

6. The Defendant opposed the application vide its Grounds of Opposition dated 11thNovember, 2015 and filed on even date as well as the Replying affidavit of one of its employee, BONIFACE NGINYO MWAURA and sworn on 11th November, 2015.

7. The Defendant avers that its Defence raises triable issues among them being whether this Court has jurisdiction to hear and determine the suit in view of Clause 40 of the alleged contract dated 10th May, 2010. The Defendant also raised the issue as to whether the alleged contract was indeed signed and executed by the Defendant and whether the same is valid and binding on the Defendant.

8. The application was prosecuted by way of written submissions. The Plaintiff filed its submissions dated 23rd November, 2015 on 25th November, 2015,while the Defendant filed its response dated 27th November, 2015on 1st December, 2015. The submissions were highlighted before the Court on 19th July, 2016.

9. I have considered the Pleadings herein as well as the written submissions filed herein by Counsel for the respective parties. The application is brought under Order 2 Rule 15 (1) (a) (b) (c) & (d)of the Civil Procedure Rules.However, in its submission the Plaintiff narrowed down to Order 2 Rule 15 (1) (a)and (c)which provide as follows:-

“15. (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) …

(c) it may prejudice, embarrass or delay the fair trial of the action; or…”

10. The Plaintiff’s claim is for Kshs.52, 629, 527. 78arising from the works it undertook under the Contract between the parties dated 10th May, 2010. The Defendant in its Defence essentially denied every claim made by the Plaintiff and averred that this Court does not have jurisdiction to hear and determine the matter. The Defendant has denied the existence of the alleged agreement dated 10th May, 2010 or the validity of the same. It is the Defendant’s assertion that it never signed or executed the said contract. The Defendant has further denied the allegations by the Plaintiff that it carried out works on the Defendant’s premises to its satisfaction and that the Defendant owes the Plaintiff Kshs. 52,629,527. 78.

11. Granted the foregoing, it cannot be said that the Defence is a sham, to the contrary, it does raise several triable issues. Needless to say that a triable issue is not necessary one that will succeed but simply one which is worth going to trial for adjudication. (See Patel Vs E.A Cargo Handling Services Ltd [1974] E.A 75 at p. 76). It is noteworthy too that the application was hinged in part on Order 2 Rule 15 (1) (a) of the Civil Procedure Rules, in respect of which no evidence is admissible by dint of Order 2 Rule 15(2) of the Civil Procedure Rules.

12. This Court will not delve into the issue of whether or not the present suit was filed prematurely or whether this Court has jurisdiction to hear the suit. These are preliminary issues that the Defendant has the option to raise by way of a preliminary objection.

13. With regard to the filing of Witness Statements and Bundles of Documents, Order 7 rule 5 of the Civil Procedure Rules allows a party to file witness statements even after filing of the Defence with the leave of the Court. It is for the Court to determine at the Case Management Conference whether the Parties have exchanged the requisite documents and are ready to proceed. In addition, in the administration of justice and to ensure a fair trial, the Court reserves the jurisdiction to determine which documents are to be accepted from the parties and at what time without prejudice to either party.

14. It cannot be gainsaid therefore that the power of the Courts to strike out pleadings should be exercised sparingly and can only be invoked in the clearest of cases. The present suit cannot, in my view, be said to be a plain and clear case for striking out, granted that the Defendant has disputed the execution of the agreement and the claim by the Plaintiff of Kshs. 52,629,527. 78. Without saying more, this Court is of the view that the Defendant’s Defence is not one that is suitable for striking out.

15. In view of the foregoing, it is the Court’s finding that the Plaintiff’s Notice of Motion dated 22nd October, 2015and filed in Court on 23rd October, 2015 lacks merit and is hereby dismissed, with an order that the costs thereof shall be in the cause.

Orders accordingly

SIGNED, DATED AND DELIVERED AT NAIROBI THIS 30TH DAY OF SEPTEMBER, 2016

OLGA SEWE

JUDGE