[2005] KEHC 2010 (KLR)
The court found that the 1st Defendant's defence, while consisting of denials, raised sufficient issues to warrant a trial, particularly as the allegation of wrongful dispossession was specifically denied and the lawfulness of the eviction was asserted. The summary jurisdiction to strike out pleadings is not...
Source-derived case information.
- Citation
- [2005] KEHC 2010 (KLR)
- Parties
- Plaintiff: Whiterose Dry Cleaners Ltd; Defendant: Pagent Holdings Ltd; Defendant: Kamal Properties Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 834 of 1996
- Procedural Posture
- Civil Suit / Ruling on Applications to Strike Out Defence and Plaint
- Outcome
- Applications to strike out the 1st Defendant's defence and the Plaint against the 2nd Defendant are dismissed. The matter is to be set down for hearing on a priority basis.
- Legal Topics
- Striking Out Pleadings, Wrongful Eviction, Landlord Tenant Disputes, Conspiracy, Injunctive Relief, General Damages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Whiterose Dry Cleaners Ltd
Plaintiff
Pagent Holdings Ltd
Defendant
Kamal Properties Ltd
Defendant
Procedural Posture
Civil Suit / Ruling on Applications to Strike Out Defence and Plaint
Legal Issues
- 1 Whether the 1st Defendant's defence should be struck out for consisting of general denials contrary to Order VI rule 9.
- 2 Whether interlocutory judgment should be entered against the 1st Defendant under Order VI rule 13.
- 3 Whether the Plaint discloses a reasonable cause of action against the 2nd Defendant and should be struck out.
Ratio Decidendi
The court found that the 1st Defendant's defence, while consisting of denials, raised sufficient issues to warrant a trial, particularly as the allegation of wrongful dispossession was specifically denied and the lawfulness of the eviction was asserted. The summary jurisdiction to strike out pleadings is not intended for detailed factual analysis at this stage. As for the 2nd Defendant, the court held that the allegation of conspiracy to defeat the Plaintiff's claim constituted a reasonable cause of action in tort, and it was not the court's role at this stage to determine the factual basis of the conspiracy. Accordingly, both applications to strike out were dismissed, and the matter was...
Court Disposition
Applications to strike out the 1st Defendant's defence and the Plaint against the 2nd Defendant are dismissed. The matter is to be set down for hearing on a priority basis.
Orders
- Application to strike out the 1st Defendant's defence is dismissed.
- Application to strike out the Plaint against the 2nd Defendant is dismissed with costs to the Plaintiff.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
Civil Suit 834 of 1996
WHITEROSE DRY CLEANERS LTD……………………PLAINTIFF
VERSUS
PAGENT HOLDINGS LTD…………………………1ST DEFENDANT
KAMAL PROPERTIES LTD…………………….....2ND DEFENDANT
RULING
There are two applications before me, first dated the 30/8/2001 in which the Plaintiff seeks to strike out the defence of the 1st Defendant on the ground that it consists of general denials contrary to OVI r 9. The application also seeks interlocutory judgment pursuant to O VI rule 13. I will deal with the latter application later.
The general complaint of the Plaintiff in the Plaint is that it was unlawfully evicted from the suit premises. The plaintiff was a tenant in the suit premises protected by the provisions of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act in respect of which the 1st Defendant obtained an order from the Business Premises Tribunal for possession which was subsequently upset in a judicial review application. At the time of the alleged wrongful eviction of the Plaintiff the decision of the tribunal had not been reversed.
A great deal of the Plaint is couched in emotive terms and much should be ignored, however the allegations to support the prayers are included in the plaint. The nature of the plaint makes it to some extent difficult to plead to in the Defence (which is sought to be struck out). With regard to the allegation in the Plaint that the Plaintiff was wrongfully evicted from the suit premises, the Defendant in paragraphs 9 and 11 denied any wrongdoing or that it wrongfully evicted the Plaintiff or that the Plaintiff had suffered any loss or damage.
It further contains the allegation that the 1st Defendant had not wrongfully sold the suit premises to the 2nd Defendant by saying it was perfectly within its right to do so.
In the case ofD.T Dobie Company (Kenya) Ltd Vs Joseph Mwaura Macharia & Leah Wanjiku Mbugua CA No. 37 of 1978 Madan JA (as he then was) cited with approval a passage from the case of Wenlock Vs Halogen & Another (1965) 1 WLR p 1238in which Sellers LJ stated as follows :
“That the summary jurisdiction of the court to strike out pleadings was never intended to be exercised by a minute and protracted examination of documents and the facts of the case…….To do that is to usurp the position of the trial judge, and to produce a trial of the case in chambers, on affidavits only, without discovery and without oral evidence tested by cross examination in the ordinary way.”
In this case it appears that the allegation of wrongful dispossession of the Plaintiff from the suit premises has been denied and it is averred that the same was lawful. The onus of proving that falls on the 1st Defendant but in my view, it raises a sufficient defence for this matter to go to trial.
If l had struck out the 1st Defendant’s defence l would not have entered interlocutory judgment as prayed, in this respect see my ruling inState of Israel Vs Michael Lewis Somen & 2 others HCCC No 2237 of 2001.
The other application dated the 4/10/2001 by the 2nd Defendant is to strike out the Plaint. The Application is said to be brought under O VI r 13 1 (a) (b) (c) and (d) and it is supported by an affidavit. It has been held in a number of cases that where it is alleged that there is no reasonable cause of action there can be no affidavit filed in support thereof. I therefore strike out the affidavit in support with costs to the Respondent. I will proceed with the matter on the basis that there is no reasonable cause of action against the 2nd Defendant. The first mention of the 2nd Defendant in the Plaint is in paragraph 43 where it states the plot on which the suit premises was situated was sold to the 2nd defendant.
In paragraph 46, there is an allegation of conspiracy that the 1st and 2nd Defendants conspired with each other to defeat the ends of justice. It is claimed the transaction for the sale was bogus and done to frustrate the Plaintiff in its claim for restitution of the suit premises.
A mandatory injunction is sought against the 1st and 2nd Defendants for possession as well as a permanent injunction restraining the Defendants from disposing of the assets, shares and selling the plot or mortgaging or parting with the possession of the same. It also claims general damages against the Defendants.
The allegation of conspiracy is an allegation of a tortious act and constitutes a reasonable cause of action against the 2nd Defendant. It is not the duty of this court now to go into the facts to see if a conspiracy can be maintained.
That is a mater for the court hearing the case.
In my view there is a sufficient cause of action alleged to sustain the suit against the 2nd Defendant and l therefore dismiss the application with costs to the Plaintiff.
I notice that this is an old matter and l order that the same be set down for hearing on priority basis.
DATED and DELIVERED at Nairobi on 4th February 2005
P.J RANSLEY
JUDGE