[2014] KEHC 3990 (KLR)
The court found that the amended plaint raises the issue of encroachment and interference with the plaintiff's plot, which constitutes a triable issue against both defendants. Although the pleadings did not specifically refer to the 2nd defendant in every instance, the averments were sufficient to disclose a cause...
Source-derived case information.
- Citation
- [2014] KEHC 3990 (KLR)
- Parties
- Plaintiff: Wilmina A. Shitsili; Defendant: Bungoma Municipal Council; Defendant: M. Big Limited
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Application 93 of 2010
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Strike Out 2nd Defendant
- Outcome
- application dismissed
- Judges
- AA Omollo
- Legal Topics
- Striking Out Pleadings, Cause of Action, Encroachment, Triable Issues
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wilmina A. Shitsili
Plaintiff
Bungoma Municipal Council
Defendant
M. Big Limited
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Strike Out 2nd Defendant
Legal Issues
- 1 Whether the amended plaint discloses a cause of action against the 2nd defendant.
- 2 Whether the 2nd defendant's name should be struck out from the suit for want of a cause of action.
- 3 Whether the issue of encroachment constitutes a triable issue.
Ratio Decidendi
The court found that the amended plaint raises the issue of encroachment and interference with the plaintiff's plot, which constitutes a triable issue against both defendants. Although the pleadings did not specifically refer to the 2nd defendant in every instance, the averments were sufficient to disclose a cause of action. The drastic remedy of striking out a party should only be exercised in the clearest of cases, which was not established here. Therefore, the application to strike out the 2nd defendant was without merit and was dismissed with costs to the plaintiff.
Court Disposition
application dismissed
Orders
- The 2nd defendant's application to strike out its name from the suit is dismissed.
- Costs of the application awarded to the plaintiff.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
HIGH COURT CIVIL APPLICATION NO. 93 OF 2010
WILMINA A. SHITSILI.............…..................................................PLAINTIFF
VERSUS
1. BUNGOMA MUNICIPAL COUNCIL
2. M. BIG LIMITED…........................................................DEFENDANTS
RULING
1. The 2nd defendant has moved the court under sec. 3, 3A of the Civil Procedure Act and Order 2 rule 15 (a), (b), (c) (d) of the Rules seeking orders to have his name struck out in the suit as the amended plaint discloses no cause of action. The motion is premised on the grounds on the face of it and contents of an affidavit sworn by Kenneth Munene Chuaga.
2. The application is opposed and the plaintiff/respondent has deposed in a 16 paragraph affidavit that there is a cause of action raised in her plaint against both defendants. In paragraph 4 and 5, she deposes her plot no. 573 neighbours 2nd defendant's plot no. 574 and the 2nd defendant has encroached on her plot.
3. I have perused the amended plaint filed in court on 21st February 2014. In which paragraph 12 and 13 is pleaded thus;
12 “That the defendants, their servants and authorized agents are interfering with the said plot and have subleased portion of it who has annexed and or encroached on it and is building and or constructing on it.”
13. “That the plaintiff as a result of the defendants' actions has suffered great loss and damage for not using the said plot which she lawfully owns...”
4. It is clear from the plaint that the plaintiff has raised the issue of encroachment in her pleadings. It is not disputed that the 2nd defendants' plot no. 574 is neighbouring the plaintiffs plot no. 573. Although in paragraph 12 of the plaint it is not specifically pleaded to refer to the 2nd defendant, there is averment of encroachment by both defendants which forms a triable issue. The 2nd defendant/applicant is asking this court to strike out a suit which is a very drastic measure that will amount to cutting short the respondent’s journey in her route to secure justice. Under order 2 r 15(1)(a) evidence is not admissible and each of the subrule are disjunctive therefore it was not proper for counsel to file affidavit evidence since the core of their application is rule 15(1)(a). In Ramji Megji Gudka Ltd vs Alfred Morfat Omondi & 2 Others (2005) eKLR the Court of Appeal held “in our view, the power to strike out pleadings must be sparingly exercised. It can only be exercised sparingly in the clearest of cases. The issue of summary procedure and striking out pleadings was given very careful consideration by this court in D.T Dobie & Co (K) ltd vs Muchina (1982) KLR 1. It is in the interest of justicethat parties are given an opportunity to present their case. It follows therefore that this court finds the 2nd defendants application without merit and proceed to dismiss it with costs to the plaintiff.
Dated, Signed and Delivered in Bungoma this 30th day of JUNE 2014
A. OMOLLO
JUDGE