1. Introduction
1. The defendants filed an application dated 29th September 2025 , seeking that the plaint dated 8th August 2025 and the suit itself be struck out with costs. The grounds advanced include alleged lack of geographical jurisdiction , reliance on absolute privilege , and claims that the suit is scandalous, frivolous, and vexatious , amounting to an abuse of the court process.
2. Plaintiff’s Position
2. The plaintiff, through a replying affidavit sworn on 31st October 2025 , contends that the statements complained of were made outside the scope of judicial proceedings and were communicated to third parties , thereby falling outside the ambit of absolute privilege. The plaintiff further submits that Mombasa is a proper forum, as the alleged defamatory acts had tangible consequences on his professional reputation in this jurisdiction.
3. Defendants’ Position
3. The 3rd defendant, acting on behalf of the 1st and 2nd defendants, maintains that statements made in the course of judicial proceedings enjoy absolute privilege under Section 198(1)(e) of the Penal Code. It is his position that the suit was filed improperly in Mombasa when the cause of action arose in Malindi and is therefore an abuse of process and a clear instance of forum shopping .
4. Detailed Defendants’ Arguments
4. The defendants assert that the plaintiff’s suit seeks to exercise supervisory jurisdiction over a court of concurrent jurisdiction , namely the High Court of Malindi. The Court finds that the defendants’ argument underscores a concern with duplication of judicial oversight . However, the Court must examine whether the plaintiff’s allegations indeed fall within judicial proceedings or extend beyond them.
5. Plaintiff’s Rebuttal
5. The plaintiff maintains that the alleged defamatory statements were communicated with malice and for purposes extraneous to judicial proceedings. It is apparent to the Court that the plaintiff raises triable issues , including professional reputational harm, which cannot be dismissed summarily.
6. Jurisdiction
6. In the Court’s view, jurisdiction is determined by Section 14 of the Civil Procedure Act , which permits a suit to be filed where a defendant resides, carries on business, or where the cause of action has effect. While some acts occurred in Malindi, their impact was felt in Mombasa, making the Court satisfied that the choice of forum is reasonable and justified .
7. Preliminary Objections and Legal Principles
7. The Court finds it important to reiterate the principles guiding preliminary objections. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 , it was held that a preliminary objection is a pure point of law that can dispose of a suit if assumed facts are correct. Issues requiring factual determination , such as identity of third-party recipients and intent, cannot be resolved at this stage
8. Absolute Privilege
8. Absolute privilege protects statements made in judicial proceedings provided they are relevant, material, and not motivated by malice . In the Court’s view, allegations of statements communicated to third parties with the intent to harm fall outside privilege, as confirmed in Amos K.C Kale & Another v Rebecca Gesora & Another [2017] KEHC 7394 (KLR) .
9. Defendants’ Emphasis on Immunity
9. The defendants submit that privilege is broad and absolute, citing comparative authority. The Court, however, notes that Kenyan law is context-sensitive , and immunity is not automatic in civil proceedings where alleged extraneous publication to third parties may have occurred.
10. Publication Requirement
10. The Court finds it necessary to remind the parties that defamation requires publication to third parties , falsity, reference to the plaintiff, and defamatory content ( John Ward v Standard Ltd, HCCC 1062 of 2005 ). It is apparent that the plaintiff alleges circulation to third parties, a fact that raises triable issues on publication and malice.
11. Malice and Extraneous Acts
11. Even privileged statements lose protection if made maliciously or outside judicial proceedings . The Court observes that the plaintiff’s pleadings sufficiently allege extraneous acts done with intent to harm his professional reputation, which must be fully investigated at trial .
12. Strike-Out Principles
12. The Court finds that the power to strike out a suit is extraordinary and must be exercised sparingly . As stated in DT Dobie & Co (Kenya) Ltd v Muchina (1982) KLR and Mutitu Water Project Self Help Group v Mutitu Water & Sanitation Co. Ltd [2024] KEHC 12848 (KLR) , strike-out is justified only if:
• There is no arguable cause of action ;
• The suit is frivolous, vexatious, or scandalous ;
• No factual inquiry is necessary.
13. Defendants’ Submission on Frivolity
13. The defendants argued that the suit is scandalous and vexatious, intended to intimidate legal practitioners and delay proceedings. In the Court’s view, this argument ignores the factual allegations of publication and reputational harm, which require evidence and examination at trial .
14. Plaintiff’s Counter on Frivolity
14. The Court finds that the plaintiff’s pleadings disclose triable causes of action , including alleged defamatory statements and extraneous publication with malice. The suit is coherent, detailed, and not frivolous or vexatious.
15. Abuse of Process
15. The Court observes that abuse of process occurs when a suit is used improperly to harass, intimidate, or delay justice . The Court finds that the plaintiff’s filing in Mombasa is legitimate , given the alleged effects of the defamatory acts in this jurisdiction. Preliminary objections cannot be used as a weapon to pre-empt adjudication on merits ( Independent Electoral & Boundaries Commission v Cheperenger & Others [2015] KESC 2 (KLR) ).
16. Factual Complexity Precludes Dismissal
16. The Court finds that issues of publication, third-party recipients, falsity, and malice require detailed evidence. The pleadings disclose a semblance of cause of action , and the suit cannot be struck out without prejudicing the plaintiff’s right to present his case.
17. Judicial Discretion
17. The Court, in exercising discretion, emphasizes that adjudication on merits is paramount. Triable issues exist, and striking out the suit would deny substantive justice . The Court must balance procedural efficiency with protection of legitimate claims .
18. Procedural Fairness
18. It is apparent to the Court that procedural fairness requires that meritorious claims are not dismissed prematurely . The strike-out application fails to meet the high threshold established in DT Dobie & Co (Kenya) Ltd v Muchina. The Court finds that the plaintiff has been afforded a fair opportunity to allege his claims in sufficient detail.
19. Costs
19. The Court finds that costs shall be in the cause , pursuant to Section 27 of the Civil Procedure Act , to be determined at the conclusion of the suit. At this stage, the focus is on allowing the dispute to proceed to trial.
20. Orders
20. Accordingly, the Court orders as follows:
21. The preliminary objection dated 28th August 2025 is dismissed.
22. The strike-out application dated 29th September 2025 is dismissed.
23. The suit shall proceed to trial on its merits.
24. Costs in the cause .
Dated, signed, and delivered in Open Court/Online through MS TEAMS this …19th …… day of …MARCH…… 2026.
HON. LADY JUSTICE W. K. MICHEN I
JUDGE
In the presence of:
MS Zulekha holding brief for MS Mburu FOR THE appilicant
NA respondent
Bebora Court Assistant
1. The defendants filed an application dated 29th September 2025 , seeking that the plaint dated 8th August 2025 and the suit itself be struck out with costs. The grounds advanced include alleged lack of geographical jurisdiction , reliance on absolute privilege , and claims that the suit is scandalous, frivolous, and vexatious , amounting to an abuse of the court process.
2. Plaintiff’s Position
2. The plaintiff, through a replying affidavit sworn on 31st October 2025 , contends that the statements complained of were made outside the scope of judicial proceedings and were communicated to third parties , thereby falling outside the ambit of absolute privilege. The plaintiff further submits that Mombasa is a proper forum, as the alleged defamatory acts had tangible consequences on his professional reputation in this jurisdiction.
3. Defendants’ Position
3. The 3rd defendant, acting on behalf of the 1st and 2nd defendants, maintains that statements made in the course of judicial proceedings enjoy absolute privilege under Section 198(1)(e) of the Penal Code. It is his position that the suit was filed improperly in Mombasa when the cause of action arose in Malindi and is therefore an abuse of process and a clear instance of forum shopping .
4. Detailed Defendants’ Arguments
4. The defendants assert that the plaintiff’s suit seeks to exercise supervisory jurisdiction over a court of concurrent jurisdiction , namely the High Court of Malindi. The Court finds that the defendants’ argument underscores a concern with duplication of judicial oversight . However, the Court must examine whether the plaintiff’s allegations indeed fall within judicial proceedings or extend beyond them.
5. Plaintiff’s Rebuttal
5. The plaintiff maintains that the alleged defamatory statements were communicated with malice and for purposes extraneous to judicial proceedings. It is apparent to the Court that the plaintiff raises triable issues , including professional reputational harm, which cannot be dismissed summarily.
6. Jurisdiction
6. In the Court’s view, jurisdiction is determined by Section 14 of the Civil Procedure Act , which permits a suit to be filed where a defendant resides, carries on business, or where the cause of action has effect. While some acts occurred in Malindi, their impact was felt in Mombasa, making the Court satisfied that the choice of forum is reasonable and justified .
7. Preliminary Objections and Legal Principles
7. The Court finds it important to reiterate the principles guiding preliminary objections. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 , it was held that a preliminary objection is a pure point of law that can dispose of a suit if assumed facts are correct. Issues requiring factual determination , such as identity of third-party recipients and intent, cannot be resolved at this stage
8. Absolute Privilege
8. Absolute privilege protects statements made in judicial proceedings provided they are relevant, material, and not motivated by malice . In the Court’s view, allegations of statements communicated to third parties with the intent to harm fall outside privilege, as confirmed in Amos K.C Kale & Another v Rebecca Gesora & Another [2017] KEHC 7394 (KLR) .
9. Defendants’ Emphasis on Immunity
9. The defendants submit that privilege is broad and absolute, citing comparative authority. The Court, however, notes that Kenyan law is context-sensitive , and immunity is not automatic in civil proceedings where alleged extraneous publication to third parties may have occurred.
10. Publication Requirement
10. The Court finds it necessary to remind the parties that defamation requires publication to third parties , falsity, reference to the plaintiff, and defamatory content ( John Ward v Standard Ltd, HCCC 1062 of 2005 ). It is apparent that the plaintiff alleges circulation to third parties, a fact that raises triable issues on publication and malice.
11. Malice and Extraneous Acts
11. Even privileged statements lose protection if made maliciously or outside judicial proceedings . The Court observes that the plaintiff’s pleadings sufficiently allege extraneous acts done with intent to harm his professional reputation, which must be fully investigated at trial .
12. Strike-Out Principles
12. The Court finds that the power to strike out a suit is extraordinary and must be exercised sparingly . As stated in DT Dobie & Co (Kenya) Ltd v Muchina (1982) KLR and Mutitu Water Project Self Help Group v Mutitu Water & Sanitation Co. Ltd [2024] KEHC 12848 (KLR) , strike-out is justified only if:
• There is no arguable cause of action ;
• The suit is frivolous, vexatious, or scandalous ;
• No factual inquiry is necessary.
13. Defendants’ Submission on Frivolity
13. The defendants argued that the suit is scandalous and vexatious, intended to intimidate legal practitioners and delay proceedings. In the Court’s view, this argument ignores the factual allegations of publication and reputational harm, which require evidence and examination at trial .
14. Plaintiff’s Counter on Frivolity
14. The Court finds that the plaintiff’s pleadings disclose triable causes of action , including alleged defamatory statements and extraneous publication with malice. The suit is coherent, detailed, and not frivolous or vexatious.
15. Abuse of Process
15. The Court observes that abuse of process occurs when a suit is used improperly to harass, intimidate, or delay justice . The Court finds that the plaintiff’s filing in Mombasa is legitimate , given the alleged effects of the defamatory acts in this jurisdiction. Preliminary objections cannot be used as a weapon to pre-empt adjudication on merits ( Independent Electoral & Boundaries Commission v Cheperenger & Others [2015] KESC 2 (KLR) ).
16. Factual Complexity Precludes Dismissal
16. The Court finds that issues of publication, third-party recipients, falsity, and malice require detailed evidence. The pleadings disclose a semblance of cause of action , and the suit cannot be struck out without prejudicing the plaintiff’s right to present his case.
17. Judicial Discretion
17. The Court, in exercising discretion, emphasizes that adjudication on merits is paramount. Triable issues exist, and striking out the suit would deny substantive justice . The Court must balance procedural efficiency with protection of legitimate claims .
18. Procedural Fairness
18. It is apparent to the Court that procedural fairness requires that meritorious claims are not dismissed prematurely . The strike-out application fails to meet the high threshold established in DT Dobie & Co (Kenya) Ltd v Muchina. The Court finds that the plaintiff has been afforded a fair opportunity to allege his claims in sufficient detail.
19. Costs
19. The Court finds that costs shall be in the cause , pursuant to Section 27 of the Civil Procedure Act , to be determined at the conclusion of the suit. At this stage, the focus is on allowing the dispute to proceed to trial.
20. Orders
20. Accordingly, the Court orders as follows:
21. The preliminary objection dated 28th August 2025 is dismissed.
22. The strike-out application dated 29th September 2025 is dismissed.
23. The suit shall proceed to trial on its merits.
24. Costs in the cause .
Dated, signed, and delivered in Open Court/Online through MS TEAMS this …19th …… day of …MARCH…… 2026.
HON. LADY JUSTICE W. K. MICHEN I
JUDGE
In the presence of:
MS Zulekha holding brief for MS Mburu FOR THE appilicant
NA respondent
Bebora Court Assistant