[2017] KEHC 9892 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

COMMERCIAL AND TAX DIVISION

CIVIL CASE NO. 221 OF 2015

VETERAN PHARMACEUTICALS LIMITED............….......PLAINTIFF

VERSUS

WEBUYE DISTRICT HOSPITAL............................1ST DEFENDANT

COUNTY GOVERNMENT OF BUNGOMA...........2ND DEFENDANT

RULING

[1]This Ruling is in respect of the Notice of Motion dated 11 March 2016, expressed to have been brought under Sections 1A, 1B and 3A of the Civil Procedure Act, Chapter 21 of the Laws of Kenya as well as Order 2 Rule 15(1) and Order 51 Rule 1 of the Civil Procedure Rules, 2010. It seeks the following orders:

[a] that the Court be pleased to strike out the Defendants' Statement of Defence dated 10 July 2015;

[b] that the court be pleased to enter judgment for the Plaintiff as against the Defendants jointly and severally as prayed in the Plaint;

[c] that costs of the application be provided for.

[2] The application was supported by the affidavit annexed thereto, sworn by a Director of the Plaintiff, Robert Kamau Willie Ngigi, on 11 March 2016,in which it was deponed that, given the Plaintiff's claim and the Bundle of Documents filed in support thereof, the Defence filed by the Defendant consists of mere denials and does not therefore raise any issues worth going to trial for. It was further averred that the Defence is orchestrated by the Defendants to embarrass, prejudice and delay the payment of the sums due to the Plaintiff in this matter, because it is vague, scandalous, vexatious, frivolous and an abuse of the process of the court. The Plaintiff also relied on the Further Supporting Affidavit filed on 22 June 2016,also sworn by Robert Kamau Willie Ngigi on 20 June 2016and urged for the striking out of the Defence and for the entry of judgment in its favour against the two Defendants, jointly and severally in the sum of Kshs. 4,399,469 plus interest and costs as prayed for in the Plaint.

[3]Order 2 Rule 15(1) of the Civil Procedure Rules, under which the application has been brought provides that:

“At any stage of the proceedings the Court may order to be struck out or amended any pleadings on the ground that:-

a. it discloses no reasonable cause of action or defence; or

b. it is scandalous, frivolous or vexatious; or

c. it may prejudice, embarrass or delay the fair trial of the action; or

d. 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."

Accordingly, any one of the grounds aforementioned would suffice for purposes of an application for striking out a pleading.

[4]It is worth mentioning therefore that the Plaintiff did not specify under which provisions of Rule 15(1) of the Civil Procedure Rulesthe application was brought, thereby giving the impression that it relies on all the grounds set out in Subrule 1 aforestated. That a deliberate choice ought to have been made as to which of the aforesaid provisions the application was brought under cannot be gainsaid. This is because Rule 15(2)stipulates that:

"No evidence shall be admissible on an application under sub- rule 1(a) but the application shall state concisely the grounds on which it is made."

And in the case of Olympic Escort International Co. Ltd & 2 Others vs. Perminder Singh Sandhu & Another [2009] eKLR, the Court of Appeal made it clear thus:

"We think for our part that it was inappropriate to combine the two prayers, one of which requires evidence before a decision is made and one that does not. There was affidavit evidence on record and it was in fact considered by the learned judge. It matters not therefore that the applicant had stated that the affidavits should not be considered."

[5] It therefore amounts to a befuddling of issues when an affidavit has been filed, as has been done herein, and yet one of the grounds raised is that the Defence discloses no reasonable defence to the Plaintiff's claim, and therefore a ground raised pursuant to Order 2 Rule 15(1)(a) of the Civil Procedure Rules.Thus, considering that there are indeed affidavits that have been filed herein in respect of the instant application, I will proceed to consider the application on the premise that it was brought pursuant to Rule 1(b), (c) and (d) of Order 2, Civil Procedure Rules.

[6] A consideration of an application such as the instant one would invariably begin with the judicial caution pronounced in the case of D.T Dobie & Company (Kenya) Limited Vs Muchina [1982] KLR1, namely that:

“The Court ought to act very cautiously and carefully and consider all facts of the case without embarking upon a trial thereof before dismissing a case for not disclosing a reasonable cause of action or being an abuse of the process of the Court. At this stage the Court ought not to deal with any merits of the case for that is a function solely reserved for the Judge at the trial as the Court itself is not usually fully informed so as to deal with the merits without discovery, without oral discovery tested by cross-examination in the ordinary way.”

[7] It is with the foregoing caution in mind that I proceed to look for what is plain and obvious in the pleadings filed herein. The Plaintiff's Plaint was filed herein on 8 May 2015 praying for judgment against the Defendants jointly and severally for Kshs. 4,399,469/= together with interest at 18% per annum from 7 April 2015 until payment in full together with costs of the suit. The aforesaid amount was said to be due and payable by the two Defendants on account of medical goods supplied to the 1st Defendant at the 1st Defendant's request on diverse dates up to and including 27 January 2014;and that the 2nd Defendant is under legal obligation to pay off the debt. It was further the Plaintiff's case that it was agreed between the parties that the goods would be paid for within 30 days from the date of delivery, but which the Defendants did not honour; hence the suit.

[8] In support of the claim, the Plaintiff attached a bundle of documents comprising of Detail/Purchase Orders, Delivery Notes, Invoices, Statements of Accounts, Courier Services Collection Sheets as well as demand letters dated 7 April 2015 and 20 April 2015; and in response thereto, the Defendant filed a Defence Statement denying having entered into any contract with the Plaintiff at any given time for the supply and delivery of medical goods worth Kshs. 4,399,469/= as alleged or at all. It was further averred by the Defendant that if any contract was entered into between the parties herein, then the same was not on terms alluded to by the Plaintiff in the Plaint; and that if any invoice was received from the Plaintiff, then the same was in respect of other services and or goods as well as different time frame that does not correspond with the Plaintiff's claim herein. In paragraph 6 of the Defence, the Defendant presented an alternative averment that if any medical goods were sold and delivered to its premises by the Plaintiff then the same were rejected for being of poor and/or low quality, and could not be utilized for the purpose for which they were procured, for to do so would have exposed patients to grave danger including the risk of death, in addition to exposing the Defendant to reputational risks. That the Plaintiff was duly notified in very good time of the rejection of the goods and the need to have them removed from the 1st Defendant's premises, but that the Plaintiff declined, refused, ignored and or neglected to do so. Accordingly, the Defendants prayer was they be given an opportunity to present their case at the hearing for a determination on the merits; and that their Defence does raise several triable issues and is therefore not a Defence for striking out under Order 2 Rule 15(1) of the Civil Procedure Rules.

[9]The application was disposed of by way of written submissions, which the Court has carefully perused and considered together with the authorities relied on by Learned Counsel. According to the Plaintiffs Counsel, the 1st Defendant was always accorded the opportunity to examine the goods and determine their merchantability and it was thereupon that the Defendant was issued with invoices; and that having taken delivery of the goods and having received and stamped the delivery notes and invoices in respect of the said goods, the Defendants are under obligation to pay for them. The Plaintiff relied on sections 13 and 36of the Sale of Goods Act, Chapter 31 of the Laws of Kenya and the cases of Dickson MainaKibira vs. David NgariMakunya [2015] eKLR and Vivo Energy Kenya Limited vs. George Karunji [2014] eKLR in urging the court to allow the application.

[10] On their part, the Defendants, in their written submissions filed herein on 3 October 2016, contended that they have raised several triable issues in their Defence and that in the premises, they deserve a hearing on the merits. It was further submitted on behalf of the Defendant that, in determining the instant application, the court should be guided by the principles enunciated in the case of DT Dobie & Company (Kenya) Ltd vs Muchina [1980] eKLR and the other authorities cited in their submissions, namely:

[a]Blue Shield Insurance Company Ltd vs Joseph Mboya Ogutu [2009] eKLR;

[b] Jubilee Insurance Company Limited vs. Grace Anyona Mbinda [2016] eKLR;

[d] Isaac Awuondo vs Surgipharm Limited & Another [2011] eKLR; and

[e] Crescent Construction Co. Limited vs Delphis Bank Limited [2007] eKLR.

[11] From the foregoing summary of the facts,it is not in dispute that the claim is for a liquidated sum for goods sold and delivered. The Plaintiff exhibited Purchase Orders from the Defendant by which the goods in question were ordered for, at the instance of the 1st Defendant. The Plaintiff further demonstrated that the goods were duly delivered and receipt thereof acknowledged by the 1st Defendant. The Defendant's contention on the other hand was that the goods were, after their delivery, found to be of unmerchantable quality and that they posed a danger to the public as they did not meet the set standards; and that they accordingly notified the Plaintiff thereof. This in my view is a triable issue worth proceeding to trial for. Section 36 of the Sale of Goods Act, that:

"The buyer is deemed to have accepted the goods ... when the goods have been delivered to him, and he does any act in relation to them which is inconsistent with the ownership of the seller, or when, after the lapse of a reasonable time, he retains the goods without intimating to the setter that he has rejected them."

[12] In this instance, the 1st Defendant contends that it did inform the Plaintiff of their rejection of the goods. Since the Plaintiff denied these allegations in the Further Supporting Affidavit filed herein on 22 June 2016, it would take a trial for the Court to decide this contested issue. Authorities abound to support the Defendants' argument that even one triable issue suffices and that litigants should not be driven away without a hearing from the seat of justice. Accordingly, I would dismiss the application dated 11 March 2016 and direct that the suit be proceeded with to hearing and disposal on the merits. Costs of the application to be in the cause.

Orders accordingly.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 10TH DAY OF MARCH 2017.

OLGA SEWE

JUDGE