[2000] KEHC 458 (KLR)
The court held that the grounds advanced by the applicant for striking out the plaint—namely, the absence of a company resolution, failure to file company returns, and alleged defects in the plaint—do not constitute valid reasons for striking out a pleading. The court found that the plaint disclosed a complete cause...
Source-derived case information.
- Citation
- [2000] KEHC 458 (KLR)
- Parties
- Defendant: Project Electricals Ltd; Plaintiff: Susan Munyi T/A Susan Munyi & Company Advocates
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 696 of ??
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Plaint
- Outcome
- application dismissed with costs
- Legal Topics
- Striking Out Pleadings, Cause of Action, Company Resolutions, Loan Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Project Electricals Ltd
Defendant
Susan Munyi T/A Susan Munyi & Company Advocates
Plaintiff
Procedural Posture
Civil Case / Ruling on Application to Strike Out Plaint
Legal Issues
- 1 Whether the plaint should be struck out for failure to disclose a cause of action.
- 2 Whether the absence of a company resolution or filing of returns is a valid ground for striking out the plaint.
- 3 Whether alleged defects in the plaint render it fatally defective.
Ratio Decidendi
The court held that the grounds advanced by the applicant for striking out the plaint—namely, the absence of a company resolution, failure to file company returns, and alleged defects in the plaint—do not constitute valid reasons for striking out a pleading. The court found that the plaint disclosed a complete cause of action as it alleged the advancement of a loan and default in repayment. Issues regarding company resolutions and statutory compliance are evidentiary matters to be resolved at trial, not at the interlocutory stage. The application to strike out the plaint was therefore dismissed as lacking merit.
Court Disposition
application dismissed with costs
Orders
- The application to strike out the plaint is dismissed with costs to the plaintiff.
Full Case Text
Judgment text and source record
4 paragraphs
REPUBLIC OF KENYA Project Electricals Ltd v Susan Munyi T/A Susan Munyi & Company Advocates High Court of Kenya at Nairobi December 15, 2000 Milimani Commercial Courts T Mbaluto, Judge Civil Case No 696 of 2000
December 15, 2000 T Mbaluto, Judge delivered the following ruling. The applicant who is the defendant in this matter has brought this application for an order to strike out the plaint filed herein on April 12, 2000 allegedly because it does not disclose any cause of action; that it’s fatally defective; was filed without a resolution authorising the filing of the same and that no returns have been filed by the plaintiff for the years 1997, 1998 and 1999 and that no resolutions have been filed for the year 2000. As regards the passing of a resolution to commence the suit and the filing of returns and resolutions, I must confess I am not aware of any law which requires that such matters be pleaded and accordingly, I consider the grounds not only as frivolous but also wholly devoid of any merit. In my view, the issue whether or not a resolution was passed authorising the institution of the suit or whether the company is somehow incapacitated from filing suit by reason of some contravention of the law (eg Failure to file returns etc) is a question of evidence which can only be resolved upon trial of the suit. It cannot be the basis for striking out a pleading. In this respect I think the decision of Githinji, J in the case of Gerald Gikonyo & Another v Wamuchege K Gatu and 3 others (HCCC No 2002/96) cited by learned counsel for the applicant is distinguishable from this case as it was not dealing with the issue of striking out pleadings.
The applicant also contends that the plaint not only discloses no cause of action but is also defective but considering that it is alleged in the plaint that the plaintiff advanced a loan of Kshs 600,000 at an agreed interest rate of 30% (full particulars of which the defendant is alleged to have known) and that there was default in repayment of the loan, which averments in my view
disclose a complete cause of action, I am unable to see the basis of the defendant’s contention. In my view the defendant should have sought particulars if she was not satisfied with the way the plaint was filed. On the grounds put forward and canvassed by the defendant there is no basis for striking out the plaint. The application therefore lacks merit and is dismissed with costs. www.kenyalawreports.or.ke