[2025] KEHC 3789 (KLR)

Safaricom PLC v Kinuthia & 2 others (Civil Suit 194 of 2019) [2025] KEHC 3789 (KLR) (Civ) (27 March 2025) (Ruling)

Neutral citation: [2025] KEHC 3789 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Suit 194 of 2019

JN Mulwa, J

March 27, 2025

Between

Safaricom PLC

Plaintiff

and

Simon Billy Kinuthia

1st Defendant

Brian Wamatu Njoroge

2nd Defendant

Benedict Kabugi Ndungu

3rd Defendant

Ruling

1. Before the Court for determination is the Plaintiff’s application dated 12/03/2024 (The applicant) specifically against Benedict Kabugi Ndungu the 3rd Defendant (the Respondent) pursuant to Section 1A, 1B, 3, & 3A of the Civil Procedure Act (CPA), Order 2 Rule 15(1)(d) and Order 51 Rule 1 of the Civil Procedure Rules (CPR) seeking inter alia:a.That this honorable Court be pleased to strike out the 3rd Defendant/Respondent’s counterclaim dated 22/04/2020. b.That the costs of this application and counterclaim be awarded to the Plaintiff/Applicant.

2. The motion is premised on grounds found at the supporting affidavit sworn by Daniel Ndaba on 12/3/2024, Senior Legal Counsel with the Applicant. The gist of his deposition is that in response to the Applicant’s suit, the Respondent filed its defence and counterclaim, thereby acknowledging existence of Constitutional Petition No. 247/2019 but failed to disclose that the cause of action and prayer sought in the said Petition are similar to those in the counterclaim, citing a ruling delivered on 30/07/2020 by the Constitutional Court in Constitutional Petition No. 247/2019, wherein the Petition was stayed pending the hearing and determination of the Criminal Case No. 979/2019- Republic v Benedict Kabugi & Others.

3. By the above disclosure, the Applicant deposes that the counterclaim as filed before this Court is an abuse of the Court process, and if not struck out, it is likely to embarrass this Court as another Court of equal status has stayed proceedings on the same cause of action.

4. The Respondent opposed the motion by way of a ground of opposition dated 07/10/2024 on grounds that the application is hopelessly misconceived, bad in law and offends the overriding objectives of just and expeditious resolution of civil disputes under Section 1A of the CPA; that the application and the suit offends the express provisions of Section 6 of the CPA and sub-judice.

5. Despite directions on disposal of the Applicant’s motion by way of written submissions, neither party filed the same. The Court has considered the rival affidavit material and postulates that the issues for determination concern: -i.Whether the Court ought to strike out the Respondent’s counterclaim?ii.Who ought to bear the costs of the motion?

Whether the Court ought to strike out the Respondent’s counterclaim? 6. It is trite that the power of the Court to strike out pleadings is provided for under Order 2 Rule 15(1) of the CPR that provides;“At any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that—i.it discloses no reasonable cause of action or defence in law; orii.it is scandalous, frivolous or vexatious; oriii.it may prejudice, embarrass or delay the fair trial of the action; oriv.it is otherwise an abuse of the process of the court”

7. Concerning striking out of pleadings, the Court of Appeal in Cooperative Merchant Bank Ltd v George Fredrick Wekesa Civil Appeal No. 54 of 1999 as cited with approval in Jubilee Insurance Co. Ltd v Grace Anyona Mbinda [2016] eKLR, rendered that:“The power of the court to strike out pleadings under Order 6 Rule 13 (1) (b) (c) & (d) is discretionary ….. 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….”See also Kivanga Estates Limited v National Bank of Kenya Limited [2017] eKLR.

8. Madan J.A in D.T. Dobie & Company (Kenya) Ltd vs. Muchina [1982] eKLR enunciated several principles to be applied in an application brought under then, Order VI Rule 13 (now Order 2 Rule 15) of the CPR. Referring to various English decisions, Madan J.A observed that:“a)The rule is to be acted upon in plain and obvious cases and the jurisdiction exercised sparingly and with care.b)…c)….”The court continued to render that;“...It is relevant to consider all averments and prayers when assessing under Order 6 Rule 13 whether a pleading discloses a reasonable cause of action, and also the contents of any affidavits that may be filed in support of an application that a pleading is otherwise an abuse of the process of the court… The court ought to act very cautiously and carefully and consider all the facts of the case without embarking on a trial thereof, before dismissing a case for not disclosing a reasonable cause of action or being otherwise an abuse of the process of the court… A court of justice should aim at sustaining a suit rather than terminating it by summary dismissal… No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action and is so weak as to be beyond redemption and incurable by amendment.”

9. It is apparent that by the Applicant’s motion, it has sought to strike out the Respondent’s counter-claim premised on Rule 15(1) (d) of Order 2, for being an abuse of the Court process. The Court of Appeal in Evanson Jidraph Kamau Waitiki v Kenya Power & Lighting Company Ltd [2017] KECA 526 (KLR) while addressing itself to the said provision observed that: -“The application that was before Omollo, J. (as he then was) was brought pursuant to order 2 rule 15(1) (d) of the Civil Procedure Rules. That provision has been the subject of interpretation in numerous decisions, as such we do not intend to spend more time than is necessary on its application to the facts before the trial judge. The application having been brought specifically under rule 15(1)(d), the respondent was expected, indeed required to present evidence to show that the pending suit is an abuse of the court process. ……… striking out pleadings is resorted to very sparingly ……… courts are encouraged to have recourse to amendment. An application for striking out pleadings does not require the court to engage in a mini-trial.”

10. As to the definition of abuse of the Court process, the same was recently discussed by the Court of Appeal in Energy Regulatory Commission v John Sigura Otido [2021] KECA 1060 (KLR) where the Court stated that: -“24. We start with the issue of alleged abuse of the court process. What is the meaning of “abuse of the court process? That term has been the subject of consideration in a number of decisions by this Court and other Courts. In Muchanga Investments Ltd vs Safaris Unlimited (Africa) Ltd & 2 Others (supra) this Court observed that it is difficult to comprehensively list all possible forms of conduct that constitute abuse of judicial process. The Court cited the Nigerian case of Sarak v Kotoye [1992] 9 NWLR 9Pt 264 where abuse of judicial process was defined as follows:-

“The concept of abuse of judicial process is imprecise; it implies circumstances and situations of infinite variety and conditions. It’s one feature is the improper use of the judicial powers by a party in litigation to interfere with the administration of justice…”

11. The same Court went on to cite examples of abuse of judicial process which include: -“(a)Instituting multiplicity of actions on the same subject matter against the same opponent on the same issues or a multiplicity of action on the same matter between the same parties even where there exists a right to begin the action.(b)Instituting different actions between the same parties simultaneously in different courts even though on different grounds.(c)Where two similar processes are used in respect of the exercise of the same right for example, a cross appeal and a respondent’s notice.”

12. With the above in reserve, can the Respondent’s counterclaim dated 22/04/2020 be considered an abuse of the Court process to warrant being struck out? The Court has taken the liberty of perusing the Constitutional Petition No. 247 of 2019 (Annexure DN-4) alongside the Respondent’s Defence and Counterclaim (Annexure DN-3). While it may be true that both pleadings are to an extent premised on similar facts the reliefs sought therein are at variance. The former clearly seeks redress on the backdrop of the Applicant’s purported breach of various constitutional provisions and statutory provisions whereas the latter directly seeks civil redress against the Applicant for breach of Mpesa user Agreement contained in the Customer Terms and Conditions for use of Mpesa. It may ex-facie appear that the counter claim is an attempt at splitting hairs in order to circumvent the stay of proceedings order issued in Constitutional Petition No. 247 of 2019 (Annexure DN-4). However, it is equally certain that the causes of action are distinct notwithstanding the underlying founding facts. Consequently, the Court is not persuaded that the Respondent’s counterclaim is an abuse of the Court process.

13. 1In light of above the Court is not persuaded to allow Applicant’s application dated 12/3/2024. It is dismissed with attendant costs to the 3rd Respondent/Defendant.

DELIVERED DATED AND SIGNED AT NAIROBI THIS 27THDAY OF MARCH, 2025……………………….JANET MULWA.JUDGE