1. I have considered the Amended Notice of Motion dated 22nd January, 2024 together with the replying affidavit sworn on 5th March, 2024, the submissions of the parties, and the applicable law.
2. The Application seeks to strike out the suit as against the 2nd Defendant on the basis inter alia that the same discloses no cause of action against the 2nd Defendant under Order 2, rule 15 of the Civil Procedure Rules.
3. The Applicant submitted, in summary, that in essence, the case is entirely between the Plaintiff and the 1st Defendant because the subject agreement was between the Plaintiff and the 1st Defendant only, and any loss arising was incurred as a result of the agreement between the Plaintiff and the first only.
4. Counsel submitted that the court ought to consider only the pleadings, and in considering the same, the court will see, that in short, the 2nd Defendant is not privy to the agreement between the Plaintiff and the cause of action is limited to 1st Defendant only.
5. The respondent, in summary submitted, that the application is incompetent because the same is supported by evidence, and has been drafted in the manner of an omnibus application, and ought to therefore, be struck out. Further, he submitted that the 2nd Defendant continues to derive benefit from the equipment belonging to the Plaintiff and this is the basis of the claim seeking compensation for the same.
6. Finally, counsel submitted that it is clear from a plain reading of the plaint, and in particular, paragraph 18 that there is an allegation against the 2nd defendant, namely that it converted the Plaintiff ’s property and continues to derive benefit from the premises and equipment installed by the Plaintiff .
7. I have noted the contents of the said paragraph, and further note that the defence, meanwhile, simply denies the above allegation, and puts the Plaintiff to strict proof.
8. Having considered the above submissions, 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.
9. Order 2 Rule 15 (1) provides 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.
10. 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.
11. 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.”
12. 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.”
13. Guided by the law as set out above, it is evident that a court ought not strike out a suit unless, in the courts view, the same is untenable in law. Such an untenable suit ought to be devoid of even a single triable issue. Is that the case here? I do not think so.
14. In my view the issue relating to whether or not the 2nd Defendant has converted the Plaintiff’s property is an allegation directed at the 2nd Defendant quite independently from the issues relation to breach of contract between the Plaintiff and the 1st Defendant. Resolving the said allegation requires the presentation of evidence before the court. I say so, noting that a 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.
15. Having found a single triable issue, I am of the view that the court ought not strike out the Suit as against the 2nd Defendant at this stage of the proceedings.
16. The upshot is that the Application is dismissed with costs.
2. The Application seeks to strike out the suit as against the 2nd Defendant on the basis inter alia that the same discloses no cause of action against the 2nd Defendant under Order 2, rule 15 of the Civil Procedure Rules.
3. The Applicant submitted, in summary, that in essence, the case is entirely between the Plaintiff and the 1st Defendant because the subject agreement was between the Plaintiff and the 1st Defendant only, and any loss arising was incurred as a result of the agreement between the Plaintiff and the first only.
4. Counsel submitted that the court ought to consider only the pleadings, and in considering the same, the court will see, that in short, the 2nd Defendant is not privy to the agreement between the Plaintiff and the cause of action is limited to 1st Defendant only.
5. The respondent, in summary submitted, that the application is incompetent because the same is supported by evidence, and has been drafted in the manner of an omnibus application, and ought to therefore, be struck out. Further, he submitted that the 2nd Defendant continues to derive benefit from the equipment belonging to the Plaintiff and this is the basis of the claim seeking compensation for the same.
6. Finally, counsel submitted that it is clear from a plain reading of the plaint, and in particular, paragraph 18 that there is an allegation against the 2nd defendant, namely that it converted the Plaintiff ’s property and continues to derive benefit from the premises and equipment installed by the Plaintiff .
7. I have noted the contents of the said paragraph, and further note that the defence, meanwhile, simply denies the above allegation, and puts the Plaintiff to strict proof.
8. Having considered the above submissions, 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.
9. Order 2 Rule 15 (1) provides 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.
10. 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.
11. 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.”
12. 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.”
13. Guided by the law as set out above, it is evident that a court ought not strike out a suit unless, in the courts view, the same is untenable in law. Such an untenable suit ought to be devoid of even a single triable issue. Is that the case here? I do not think so.
14. In my view the issue relating to whether or not the 2nd Defendant has converted the Plaintiff’s property is an allegation directed at the 2nd Defendant quite independently from the issues relation to breach of contract between the Plaintiff and the 1st Defendant. Resolving the said allegation requires the presentation of evidence before the court. I say so, noting that a 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.
15. Having found a single triable issue, I am of the view that the court ought not strike out the Suit as against the 2nd Defendant at this stage of the proceedings.
16. The upshot is that the Application is dismissed with costs.