[2018] KEHC 5341 (KLR)
The court found that although there is substantial similarity between the pleadings in the lower court and the present suit, the present plaint introduces additional issues, specifically the statutory duty and liability of the 2nd defendant (Insurance Regulatory Authority), which were not addressed in the lower...
Source-derived case information.
- Citation
- [2018] KEHC 5341 (KLR)
- Parties
- Plaintiff: Vegpro (K) Ltd; Defendant: Tausi Assurance Company Limited; Defendant: Insurance Regulatory Authority IRA
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 112 of 2017
- Procedural Posture
- Civil Suit / Ruling on Application to Strike Out Plaint
- Outcome
- application dismissed
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Striking Out of Pleadings, Abuse of Court Process, Duplicity of Suits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Vegpro (K) Ltd
Plaintiff
Tausi Assurance Company Limited
Defendant
Insurance Regulatory Authority IRA
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Strike Out Plaint
Legal Issues
- 1 Whether the suit should be struck out as an abuse of court process due to duplicity with a prior suit in the Magistrate's Court.
- 2 Whether the plaint raises distinct issues regarding the statutory duty of the 2nd defendant, justifying its continuation.
Ratio Decidendi
The court found that although there is substantial similarity between the pleadings in the lower court and the present suit, the present plaint introduces additional issues, specifically the statutory duty and liability of the 2nd defendant (Insurance Regulatory Authority), which were not addressed in the lower court suit. Therefore, the two cases are not identical, and the risk of double jeopardy to the 1st defendant does not arise. Striking out the plaint would deny the plaintiff an avenue to compel the 2nd defendant to perform its statutory duty. Given that striking out is a drastic remedy to be used sparingly, the court held it undesirable in the circumstances and dismissed the...
Court Disposition
application dismissed
Orders
- The application to strike out the plaint is dismissed with costs to the plaintiff.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL SUIT NO. 112 OF 2017
VEGPRO (K) LTD..................................................................PLAINTIFF
VERSUS
TAUSI ASSURANCE COMPANY LIMITED ..........1ST DEFENDANT
INSURANCE LEGULATORY
AUTHORITY IRA.......................................................2ND DEFENDNAT
RULING
This is an application by way of Notice of Motion dated 13th September, 2017 under Order 4 Rule (1), (f) and Order 2 Rule15 (1) of the Civil Procedure Rules, and Section 3A of the Civil Procedure Act seeking an Order that this suit be struck out with costs to the 1st defendant.
The reason for seeking that order is that, the plaint is a gross abuse of the court process in that prior to filing this suit the plaintiff lodged another suit before the Chief Magistrate’s Court, being No. 6422 of 2016 against the 1st defendant arising from the same cause of action. There is a supporting affidavit sworn by the advocate for the 1st defendant.
The plaint relating to CMCC No. 6422 of,2016 and the defence of the 1st defendant are annextures to that affidavit. The application is opposed and there is a replying affidavit sworn by the Group Human Resource Manager of the plaintiff. The suit in the lower court is admitted, and the reason for filing the present suit is because the 1st defendant has an obligation to meet the judgment in the lower court entered against the plaintiff herein, it being the insurer of the plaintiff, and the 2nd defendant being the Insurance Regulatory Authority with the duty to compel the 1st defendant to meet its obligation. This duty, the 2nd defendant has failed to meet.
Both parties have filed submissions which I have considered. I have related the pleadings in the lower court to the pleadings in this court alongside the submissions filed. The thrust of the application is that the plaintiff is guilty of duplicity. It is true that some of the pleadings in the lower court have been repeated in the instant case word for word. I notice however that in addition to the prayers set out in the lower court, the present plaint has addressed the duty and liability of the 2nd defendant in a declaratory manner.
It cannot be said therefore that the two cases are identical. An allegation of duplicity necessarily means that the aggrieved party may be subjected to double jeopardy. Looking at the prayers, there is no way the 1st defendant can be subjected to such a situation. There may be some concern about costs when the two matters are eventually determined, but that should not call for the striking out of the plaint. If the plaint were to be struck out the plaintiff would have no recourse in compelling the 2nd defendant to perform its statutory duty.
Striking out of a pleading is a drastic measure which should be applied cautiously. This is because it drives out a litigant from the seat of justice. I consider it undesirable in the circumstances of this case.
This application must fail and is dismissed with costs to the plaintiff.
Dated, signed and delivered at Nairobi this 21st Day of June, 2018.
A. MBOGHOLI MSAGHA
JUDGE