1. Vide a plaint dated 25th March 2024, the plaintiff stated that the defendants were contracted by it to provide maritime logistics services for its avocado business. The plaintiff accused the defendants of being negligent as a result of which the avocados they had been contracted to transport spoiled and had to be discarded.
2. The plaintiff averred that following the said incident, it lost business and had to shut down. It sought to recover from the defendants USD $28,440 and Euros €26,809.20 as special and general damages for loss of business and loss of reputation, respectively, and for breach of contract. It also claimed costs and interest.
3. In a defence filed on 30th April 2024, denied the contents of the plaint. It pleaded that the 2nd defendant was an agent of a disclosed principal. For that reason, the 2nd defendant ought not to have been sued under the law of agency. It averred that the suit did not disclose a reasonable cause of action against it as it did not provide sufficient particulars. The defendants stated that the suit ought to have been filed within one year of the date of delivery of the subject goods. In support of the said contention, the defendants referred to section 2 of the Carriage of Goods by Sea Act, as read with Article III, Rule 6 (3) of the Hague-Visby Rules.
4. Vide a Notice of Motion dated 1st December 2025, the plaintiff now wants to strike out the defence on the grounds that it is a bare denial. The application is opposed by the defendants through a replying affidavit sworn by Cecilia Ndetu on 16th December 2025.
5. Both parties filed written submissions in support of their respective cases, which I have considered.
6. Should the court strike out the defence filed by the defendants? It is trite law that the remedy of striking out is a discretionary one that the court should use sparingly. In the case of Equatorial Commercial Bank Ltd v Jodam Engineering Works Limited & 2 others [2014] KEHC 6204 (KLR), it held that:
“It cannot be gainsaid that striking out of pleadings should be done sparingly.”
7. Similarly, in Water Resources Management Authority v Kensalt Limited [2016] KECA 624 (KLR), it was held that:
“Because of its far-reaching and drastic nature, the remedy of striking out any pleadings is resorted to very sparingly and as a last resort, hence the alternative recourse in rule 15(1) of amendment instead of striking out. In addition, the requirement that no evidence is to be presented in such application if based on Rule 15 (a), is a demonstration that the court is not expected to engage in a mini-trial. Consequently the following principles have evolved;
i. a court of justice should aim at sustaining a suit rather than terminating it by summary dismissal. See D.T. Dobie case (supra)
ii. The Court must exercise tremendous caution because a litigant who is genuinely aggrieved must never be driven from the seat of justice without being heard, except in cases where the cause of action is obviously and almost incontestably bad. See Dyson v Attorney General (1911) IKB 410 at 418
iii. The question whether or not to strike out a pleading for not raising reasonable cause of action is one of judicial discretion with which an appellate court will not interfere unless it is clear to it that there was either an error on principle or that the trial judge was plainly wrong. See The Co-operative Merchant Bank Ltd v George Fredrick Wekesa, Civil Appeal No.54 of 1990.
iv. Because striking out is draconian in nature the court will resort to it (first,) with extreme caution and only in plain and clearest cases see Vensan Insurance Brokers Ltd & Another v Kenindia Assurance Co-Ltd, Civil Application No.94 of 1997. The famous Case of Walter v Sunday Pictorial Newspaper Ltd [1961] 2 All ER 158 reminds us that:-
“The drastic remedy of striking out a pleading or part of a pleading cannot be resorted to unless it is quite clear that the pleading objected to disclose no arguable case. Indeed, it has been concluded before us that the rule is applicable only in clear and obvious cases.”
8. Judge Madan was emphatic in DT Dobie & Co v Muchina [1982]eKLR that:
“The court ought to act very cautiously and carefully and consider all facts of the case without embarking upon a trial thereof, before dismissing a case for not disclosing a reasonable cause of action or being otherwise an abuse of the process of the court. At this stage, the court ought not to deal with any merits of the case for that is a function solely reserved for the Judge at the trial, as the court itself is not usually fully informed so as to deal with the merits without discovery, without oral evidence tested by cross-examination in the ordinary way… As far as possible, indeed not at all, there should be no opinion expressed upon the application which may prejudice the fair trial of the action or make it uncomfortable or restrict the freedom of the trial Judge in disposing of the case in the way he thinks right.”
9. The issue that I must determine, therefore, is whether the defence file herein discloses a reasonable defence? Or is it so weak as to be beyond amendment? Is the weakness of the defence clear?
10. The defendants aver that the plaint is bereft of particulars. It is further averred that the claim is statute-barred. Are these issues bona fide, and do they call for a trial on the merits? In my view, they are.
11. Grant of leave to file a claim did not extinguish the defence of limitation. The same can be raised during the hearing (see Gikuhi v Nderitu [2024] KEHC 266 (KLR).
12. In the circumstances. I am of the view that the Notice of Motion dated 1st December 2025 has no merit. The same is dismissed with costs.
13. It is so ordered.
Dated, delivered, and signed at Nairobi, this 14th day of May 2026.
2. The plaintiff averred that following the said incident, it lost business and had to shut down. It sought to recover from the defendants USD $28,440 and Euros €26,809.20 as special and general damages for loss of business and loss of reputation, respectively, and for breach of contract. It also claimed costs and interest.
3. In a defence filed on 30th April 2024, denied the contents of the plaint. It pleaded that the 2nd defendant was an agent of a disclosed principal. For that reason, the 2nd defendant ought not to have been sued under the law of agency. It averred that the suit did not disclose a reasonable cause of action against it as it did not provide sufficient particulars. The defendants stated that the suit ought to have been filed within one year of the date of delivery of the subject goods. In support of the said contention, the defendants referred to section 2 of the Carriage of Goods by Sea Act, as read with Article III, Rule 6 (3) of the Hague-Visby Rules.
4. Vide a Notice of Motion dated 1st December 2025, the plaintiff now wants to strike out the defence on the grounds that it is a bare denial. The application is opposed by the defendants through a replying affidavit sworn by Cecilia Ndetu on 16th December 2025.
5. Both parties filed written submissions in support of their respective cases, which I have considered.
6. Should the court strike out the defence filed by the defendants? It is trite law that the remedy of striking out is a discretionary one that the court should use sparingly. In the case of Equatorial Commercial Bank Ltd v Jodam Engineering Works Limited & 2 others [2014] KEHC 6204 (KLR), it held that:
“It cannot be gainsaid that striking out of pleadings should be done sparingly.”
7. Similarly, in Water Resources Management Authority v Kensalt Limited [2016] KECA 624 (KLR), it was held that:
“Because of its far-reaching and drastic nature, the remedy of striking out any pleadings is resorted to very sparingly and as a last resort, hence the alternative recourse in rule 15(1) of amendment instead of striking out. In addition, the requirement that no evidence is to be presented in such application if based on Rule 15 (a), is a demonstration that the court is not expected to engage in a mini-trial. Consequently the following principles have evolved;
i. a court of justice should aim at sustaining a suit rather than terminating it by summary dismissal. See D.T. Dobie case (supra)
ii. The Court must exercise tremendous caution because a litigant who is genuinely aggrieved must never be driven from the seat of justice without being heard, except in cases where the cause of action is obviously and almost incontestably bad. See Dyson v Attorney General (1911) IKB 410 at 418
iii. The question whether or not to strike out a pleading for not raising reasonable cause of action is one of judicial discretion with which an appellate court will not interfere unless it is clear to it that there was either an error on principle or that the trial judge was plainly wrong. See The Co-operative Merchant Bank Ltd v George Fredrick Wekesa, Civil Appeal No.54 of 1990.
iv. Because striking out is draconian in nature the court will resort to it (first,) with extreme caution and only in plain and clearest cases see Vensan Insurance Brokers Ltd & Another v Kenindia Assurance Co-Ltd, Civil Application No.94 of 1997. The famous Case of Walter v Sunday Pictorial Newspaper Ltd [1961] 2 All ER 158 reminds us that:-
“The drastic remedy of striking out a pleading or part of a pleading cannot be resorted to unless it is quite clear that the pleading objected to disclose no arguable case. Indeed, it has been concluded before us that the rule is applicable only in clear and obvious cases.”
8. Judge Madan was emphatic in DT Dobie & Co v Muchina [1982]eKLR that:
“The court ought to act very cautiously and carefully and consider all facts of the case without embarking upon a trial thereof, before dismissing a case for not disclosing a reasonable cause of action or being otherwise an abuse of the process of the court. At this stage, the court ought not to deal with any merits of the case for that is a function solely reserved for the Judge at the trial, as the court itself is not usually fully informed so as to deal with the merits without discovery, without oral evidence tested by cross-examination in the ordinary way… As far as possible, indeed not at all, there should be no opinion expressed upon the application which may prejudice the fair trial of the action or make it uncomfortable or restrict the freedom of the trial Judge in disposing of the case in the way he thinks right.”
9. The issue that I must determine, therefore, is whether the defence file herein discloses a reasonable defence? Or is it so weak as to be beyond amendment? Is the weakness of the defence clear?
10. The defendants aver that the plaint is bereft of particulars. It is further averred that the claim is statute-barred. Are these issues bona fide, and do they call for a trial on the merits? In my view, they are.
11. Grant of leave to file a claim did not extinguish the defence of limitation. The same can be raised during the hearing (see Gikuhi v Nderitu [2024] KEHC 266 (KLR).
12. In the circumstances. I am of the view that the Notice of Motion dated 1st December 2025 has no merit. The same is dismissed with costs.
13. It is so ordered.
Dated, delivered, and signed at Nairobi, this 14th day of May 2026.