1. I have considered the notice of motion dated 12th October, 2023 together with the replying affidavit sworn on 21st February, 2024, the submissions of the parties, and the applicable law.
2. The Application seeks to strike out the Defendant’s statement of defence on the basis that the same discloses no defence in law under Order 2, rule 15 of the Civil Procedure Rules.
3. The Applicant submitted, in summary, that in essence, the Defence is no more than a mere denial of the allegations raised in the Amended Plaint.
4. In particular, Counsel submitted that Defendant has admitted entering into the agreement dated 8th September, 2021 between the parties, and accordingly, there is no basis for denial that the contractual sum of Kshs 110,000,000/- is owed to the Plaintiff, being the consideration set out in the contract.
5. Counsel submitted that references to previous agreements between the parties or entities that are not parties to the present dispute, as pleaded by the Defendant in its Defence are irrelevant, and the court ought not to consider the same as any basis for a justifiable defence.
6. Further, the method that the contract of agreement provided for, and the undertakings upon which the contractual terms were to be paid to the plaintiff, have been breached by the Defendant, and the same are undeniable facts.
7. Counsel for the Applicant pointed out the Defendant may not deny payments that it has made to the Applicant, and for which there is proof. He referred the court to an Exhibit filed in support of the Application.
8. In opposition to the Application, the Respondent submitted that an application seeking to strike out pleading on grounds that it discloses no reasonable defence ought not to be filed together with a supporting affidavit or evidence as the relevant consideration ought to be derived from the contents of the subject pleadings in themselves. In doing so, he submitted that the Plaintiff/Applicant is seeking to argue matters of evidence by way of affidavits and is seeking to have this Court render an opinion on the substantive merits of the Defendant/Respondent’s Defence at an interlocutory state, and without having had benefit of hearing the parties’ respective oral evidence.
9. Counsel contended that the Applicant is also seeking remedies that are not predicated in the relevant contracts between the parties or grounded in any law; and which remedies the Plaintiff/Applicant is in any event not entitled to.
10. Finally, the Defendant argued that the matter concerns the parent companies of the parties, who ought to be joined to the suit. And argued that determining the suit at this stage, pursuant to the present Application would prejudice the parties.
11. Having considered the above, the applicable law relevant to an Application seeking to strike out pleadings is found at Order 2, rule 15 (1) (b) (c) (d) and (2) of the Civil Procedure Rules.
12. Order 2 Rule 15 (1) and (2) provide that;
“(1) At any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that—
(a) it discloses no reasonable cause of action or defence in law; 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”
(2) 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.
13. In the cases of D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & another [1980] eKLR and Blue Shield Insurance Company Ltd v Joseph Mboya Oguttu [2009] eKLR, the Court of Appeal aptly set out the principals to be applied in consideration of an Application to strike out pleadings.
14. In Blue Shield Insurance Company supra, the Court held inter alia that;
“The power to strike out should be exercised after the Court has considered all facts, but it must not embark on the merits of the case itself as this is solely reserved for the trial Judge. On an Application to strike out pleadings, no opinion should be expressed as this would prejudice fair trial and would restrict the freedom of the trial Judge in disposing the case.”
15. Further, in the seminal case of DT Dobie supra, the court stated that
“the power to strike out a pleading which ends in driving a party from the judgment seat should be used very sparingly and only in cases where the pleading is shown to be clearly untenable.” … “In law, only one issue raised in defence, if it constitutes a genuine defence and not necessarily a successful defence, would warrant a full hearing.”
16. Guided by the law as set out above, it is evident that a court ought not strike out a defence unless, in the courts view, the same is untenable in law. Such an untenable defence ought to be devoid of even a single triable issue. Is that the case here? I do not think so.
17. I have looked at the statement of defence, and I am of the view that the issue relating to whether or not the Plaintiff is in breach of its obligations arising out of the contract between the parties, and giving rise to the present conflict, is a triable issue. Resolving the same requires the presentation of evidence before the court. I say so, noting that triable issue is merely one that is arguable, and one deserving of consideration of the court, even if it is not clear at this point, if the same would ultimately succeed.
18. Having found a single triable issue, I am of the view that the court ought not strike out the Statement of Defence or deal with the merits of the case at this stage of the proceedings.
19. Further, I cannot help but notice that the Applicant has relied heavily on its evidence filed in the supporting affidavit sworn on even date of the Application. The court has been drawn to numerous clauses set out in the contract between the parties, and various exhibits as proof of payment, and has been invited to make final determinations in relation to the facts applicable to the evidence tendered before the court. This is not appropriate in such an application, and such analysis ought to be reserved for the trial court.
20. Order 2 rule 15 stipulates that no affidavit evidence shall be admissible in an Application raised on the grounds therein. Therefore, I have not considered the affidavit evidence supplied by the Applicant. To do so would be contrary to the Rules, and would occasion prejudice to the Respondent.
21. To my mind, among the reasons why evidence may not be tendered in such an application is because the grounds raised on the face of the Application, and the submissions in relation to the same ought to be so clear, and so obvious, that a court, based on the face of the application and based on a plain reading of the same, ought to be conclude in favour of the applicant. That is not the case here.
22. The upshot is that the Application is dismissed with costs.
2. The Application seeks to strike out the Defendant’s statement of defence on the basis that the same discloses no defence in law under Order 2, rule 15 of the Civil Procedure Rules.
3. The Applicant submitted, in summary, that in essence, the Defence is no more than a mere denial of the allegations raised in the Amended Plaint.
4. In particular, Counsel submitted that Defendant has admitted entering into the agreement dated 8th September, 2021 between the parties, and accordingly, there is no basis for denial that the contractual sum of Kshs 110,000,000/- is owed to the Plaintiff, being the consideration set out in the contract.
5. Counsel submitted that references to previous agreements between the parties or entities that are not parties to the present dispute, as pleaded by the Defendant in its Defence are irrelevant, and the court ought not to consider the same as any basis for a justifiable defence.
6. Further, the method that the contract of agreement provided for, and the undertakings upon which the contractual terms were to be paid to the plaintiff, have been breached by the Defendant, and the same are undeniable facts.
7. Counsel for the Applicant pointed out the Defendant may not deny payments that it has made to the Applicant, and for which there is proof. He referred the court to an Exhibit filed in support of the Application.
8. In opposition to the Application, the Respondent submitted that an application seeking to strike out pleading on grounds that it discloses no reasonable defence ought not to be filed together with a supporting affidavit or evidence as the relevant consideration ought to be derived from the contents of the subject pleadings in themselves. In doing so, he submitted that the Plaintiff/Applicant is seeking to argue matters of evidence by way of affidavits and is seeking to have this Court render an opinion on the substantive merits of the Defendant/Respondent’s Defence at an interlocutory state, and without having had benefit of hearing the parties’ respective oral evidence.
9. Counsel contended that the Applicant is also seeking remedies that are not predicated in the relevant contracts between the parties or grounded in any law; and which remedies the Plaintiff/Applicant is in any event not entitled to.
10. Finally, the Defendant argued that the matter concerns the parent companies of the parties, who ought to be joined to the suit. And argued that determining the suit at this stage, pursuant to the present Application would prejudice the parties.
11. Having considered the above, the applicable law relevant to an Application seeking to strike out pleadings is found at Order 2, rule 15 (1) (b) (c) (d) and (2) of the Civil Procedure Rules.
12. Order 2 Rule 15 (1) and (2) provide that;
“(1) At any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that—
(a) it discloses no reasonable cause of action or defence in law; 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”
(2) 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.
13. In the cases of D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & another [1980] eKLR and Blue Shield Insurance Company Ltd v Joseph Mboya Oguttu [2009] eKLR, the Court of Appeal aptly set out the principals to be applied in consideration of an Application to strike out pleadings.
14. In Blue Shield Insurance Company supra, the Court held inter alia that;
“The power to strike out should be exercised after the Court has considered all facts, but it must not embark on the merits of the case itself as this is solely reserved for the trial Judge. On an Application to strike out pleadings, no opinion should be expressed as this would prejudice fair trial and would restrict the freedom of the trial Judge in disposing the case.”
15. Further, in the seminal case of DT Dobie supra, the court stated that
“the power to strike out a pleading which ends in driving a party from the judgment seat should be used very sparingly and only in cases where the pleading is shown to be clearly untenable.” … “In law, only one issue raised in defence, if it constitutes a genuine defence and not necessarily a successful defence, would warrant a full hearing.”
16. Guided by the law as set out above, it is evident that a court ought not strike out a defence unless, in the courts view, the same is untenable in law. Such an untenable defence ought to be devoid of even a single triable issue. Is that the case here? I do not think so.
17. I have looked at the statement of defence, and I am of the view that the issue relating to whether or not the Plaintiff is in breach of its obligations arising out of the contract between the parties, and giving rise to the present conflict, is a triable issue. Resolving the same requires the presentation of evidence before the court. I say so, noting that triable issue is merely one that is arguable, and one deserving of consideration of the court, even if it is not clear at this point, if the same would ultimately succeed.
18. Having found a single triable issue, I am of the view that the court ought not strike out the Statement of Defence or deal with the merits of the case at this stage of the proceedings.
19. Further, I cannot help but notice that the Applicant has relied heavily on its evidence filed in the supporting affidavit sworn on even date of the Application. The court has been drawn to numerous clauses set out in the contract between the parties, and various exhibits as proof of payment, and has been invited to make final determinations in relation to the facts applicable to the evidence tendered before the court. This is not appropriate in such an application, and such analysis ought to be reserved for the trial court.
20. Order 2 rule 15 stipulates that no affidavit evidence shall be admissible in an Application raised on the grounds therein. Therefore, I have not considered the affidavit evidence supplied by the Applicant. To do so would be contrary to the Rules, and would occasion prejudice to the Respondent.
21. To my mind, among the reasons why evidence may not be tendered in such an application is because the grounds raised on the face of the Application, and the submissions in relation to the same ought to be so clear, and so obvious, that a court, based on the face of the application and based on a plain reading of the same, ought to be conclude in favour of the applicant. That is not the case here.
22. The upshot is that the Application is dismissed with costs.