RULING
1. The Plaintiff filed the Notice of Motion dated 20th June 2024 seeking the following orders;
a) The Defendants' Defence dated 23rd May 2024 be struck out and judgment entered for the Plaintiff as prayed in the Plaint dated 19th March 2024;
b) The Defendants pay the Plaintiff (sic) costs of this Application and the Suit.
2. The Application was supported by the Affidavit of BURAK KIZIROĞLU , sworn on 20th June 2024, who stated that the Defendants' Defence is a sham, containing only bare denials and is without substance and that the 1st Defendant has admitted the claim.
3. Further, the Defendants have not filed any Witness Statements or Documents in support of their Defence in breach of Order 7 Rule 5 of the Civil Procedure Rules.
4. In response to the Application, the Respondents filed the Replying Affidavit by Mary Murugi Ngige sworn on 28th August 2024. She deponed that she is a State Counsel at the Honourable Attorney General’s Chambers. She stated that while the Defence admits that there was a contract between the parties herein, it denies that there was an Addendum to the contract. This addendum is also an issue that goes to the root of the suit especially with the tabulation of an amount equating to Kshs.380,332,430, which amount requires the Court's determination.
5. In addition, the Defendants will suffer irreparable loss or damage if they are not given an opportunity to defend the claim. This is because the Plaintiff's claim involves a colossal sum which will be paid by the taxpayer.
Issues for Determination
6. The parties filed written submissions which the Court has carefully considered and frames the following issue for determination;
a) Whether the Defence should be struck out and judgment entered for the Plaintiff.
Analysis
7. The Applicant herein sought for the defence to be struck out, and for judgment to be entered in its favour as prayed in the plaint. This on the ground that the Defendants, at paragraphs 4 of their Statement of Defence, admitted the debt that is due and owing from it to the Plaintiff. The Applicant argued that at paragraph 4 of the Defence, the Defendants admit the final accounts by stating:
"...the project was completed and all monies due to the Contractor as per the final accounts dated 30/11/2018 were fully settled by the defendant".
8. On the other hand, the Respondents held the position that the defence raises triable issues and it was their submission that even one triable issue would be sufficient for determination. That even a single triable issue warrants the matter to proceed for a full trial for hearing and determination. Additionally, in its Defence, while the defendant has admitted that there was a contract between parties herein, it denied that there was an addendum contract. That this is also an issue that goes to the root of the suit. This is more so especially with the tabulation of usurious amount equating to Kshs.380,332,430 that requires the Court’s determination.
9. Order 2 Rule 15 of the Civil Procedure Rules provides as follows: -
Rule 15. (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, and may order the suit to be stayed or dismissed or judgment to be entered accordingly, as the case may be.
10. The principles for consideration before the striking out a defence were aptly captured by the Court of Appeal D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & another [1980] KECA 3 (KLR) highlighted, as follows: -
"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."
11. The Plaintiff in its Plaint averred that;
"4. The Plaintiff was employed by the Contracting Authority, the 1st Defendant herein under the Works Contract financed by the European Development Fund and Government of Kenya to upgrade the Merille - Marsabit Road A2 in Kenya from existing gravel road to paved international standard which works were completed satisfactorily.
5. There remained unsettled claims and payments due to the Plaintiff that were amicably agreed between the parties to amount to Kenya Shillings 499,424,132.00.
6. On 16th August 2021, the 1st Defendant and the Plaintiff executed Addendum No.4 to Works Contract No. FED/202/306-871 formally incorporating the amount of the amicable settlement."
12. The Court notes that paragraphs 4 & 5 of the Defence state as follows;
"4.The Defendants deny the contents of paragraph 5, 6 and 7 of the Plaint and puts the Plaintiff to strict proof. The Plaintiff further avers that the project was completed and all the monies due to the contractor as per the final accounts dated 30/11/2018 were fully settled by the Defendant.
5. The Defendants denies signing any addendum to the contract no. FED/202/306-871 as alleged in paragraph 8 of the Plaint and thus deny owing the Plaintiff any dues and put the Plaintiff to strict proof thereof."
13. Firstly, it is common ground that there was a contract between the parties herein, however, the Defendants deny that there was an Addendum to the contract as alleged by the Plaintiff.
14. Secondly, it is the Court’s understanding that while the Plaintiff held the position that some payments were made by the 1st Defendant to the Plaintiff and some outstanding charges accrued; the Defendants stated that all the monies that were due and owing to the Plaintiff were fully settled. That therefore according to the Defendants there are no dues owing to the Plaintiff.
15. The Court’s analysis of the Defence paragraphs above shows that the issue concerning the amount owing is disputed and therefore warrants the intervention of the Court. The Court is therefore called upon to make a determination as to whether there are such payments due and payable. This issue can only be addressed through a trial. Thus, the Statement of Defence raises a triable issue and cannot be referred to as a sham. At least no such sufficient materials or evidence have been placed before this Court to warrant it to make such a finding.
16. The Applicant also pointed out that the Defendants have not filed any Witness Statements or Documents in support of their Defence in breach of Order 7 Rule 5 of the Civil Procedure Rules . It provides;
Documents to accompany defence or counterclaim [Order 7, rule 5]
The defence and counterclaim filed under rule 1 and 2 shall be accompanied by—
(a) an affidavit under Order 4 rule 1(2) where there is a counterclaim;
(b) a list of witnesses to be called at the trial;
(c) written statements signed by the witnesses except expert witnesses; and
(d) copies of documents to be relied on at the trial.
17. Indeed, the Defendants have not filed any Witness Statement or Documents in support of their Defence as required under the Civil Procedure Rules. In the case of J efitha Muchai Mwai versus Peter Wangio Thuku [2015] eKLR , the Court held:
“ …If a party inadvertently leaves out a verifying affidavit or any other document like a statement, he/she could be given a chance to file one and the matter can proceed for determination on merit. If the other party is affected by the attendant delay, appropriate costs should adequately address the problem…”
18. The Court adopts the view of the Court in the above case and finds that the said defect is not fatal as it can be cured by allowing the Defendants' Witness Statement or Documents in support of their Defence. In any event the matter has not been listed for Pre-trials. It may well be that the Defendants will not be relying on any witnesses or filing any documents. That information will no doubt come out once the parties take the next procedural steps to get the matter ready for trial.
19. In light of the above, the Court finds that the Applicant has not made out a case for striking out the Respondents Statement of Defence. The Application lacks merit and is hereby dismissed.
20. As to cost, the same lie at the discretion of this Court. The Court directs that the costs will abide the outcome of this suit.
Determination
21. The Plaintiff’s Application by way of a Notice of Motion dated 20th June, 2024 is hereby dismissed for lack of merits.
22. The Costs be in the cause and do abide the outcome of the suit.
23. It is so ordered.
DATED, SIGNED AND DELIVERED AT MILIMANI THIS 31ST DAY OF JULY, 2025 .
NJOROGE BENJAMIN K.
JUDGE
In the presence of;
Mr. Misaro for the Plaintiff/Applicant.
Miss Murugi for the Defendants/Respondents
Mr. Amos – Court Assistant
1. The Plaintiff filed the Notice of Motion dated 20th June 2024 seeking the following orders;
a) The Defendants' Defence dated 23rd May 2024 be struck out and judgment entered for the Plaintiff as prayed in the Plaint dated 19th March 2024;
b) The Defendants pay the Plaintiff (sic) costs of this Application and the Suit.
2. The Application was supported by the Affidavit of BURAK KIZIROĞLU , sworn on 20th June 2024, who stated that the Defendants' Defence is a sham, containing only bare denials and is without substance and that the 1st Defendant has admitted the claim.
3. Further, the Defendants have not filed any Witness Statements or Documents in support of their Defence in breach of Order 7 Rule 5 of the Civil Procedure Rules.
4. In response to the Application, the Respondents filed the Replying Affidavit by Mary Murugi Ngige sworn on 28th August 2024. She deponed that she is a State Counsel at the Honourable Attorney General’s Chambers. She stated that while the Defence admits that there was a contract between the parties herein, it denies that there was an Addendum to the contract. This addendum is also an issue that goes to the root of the suit especially with the tabulation of an amount equating to Kshs.380,332,430, which amount requires the Court's determination.
5. In addition, the Defendants will suffer irreparable loss or damage if they are not given an opportunity to defend the claim. This is because the Plaintiff's claim involves a colossal sum which will be paid by the taxpayer.
Issues for Determination
6. The parties filed written submissions which the Court has carefully considered and frames the following issue for determination;
a) Whether the Defence should be struck out and judgment entered for the Plaintiff.
Analysis
7. The Applicant herein sought for the defence to be struck out, and for judgment to be entered in its favour as prayed in the plaint. This on the ground that the Defendants, at paragraphs 4 of their Statement of Defence, admitted the debt that is due and owing from it to the Plaintiff. The Applicant argued that at paragraph 4 of the Defence, the Defendants admit the final accounts by stating:
"...the project was completed and all monies due to the Contractor as per the final accounts dated 30/11/2018 were fully settled by the defendant".
8. On the other hand, the Respondents held the position that the defence raises triable issues and it was their submission that even one triable issue would be sufficient for determination. That even a single triable issue warrants the matter to proceed for a full trial for hearing and determination. Additionally, in its Defence, while the defendant has admitted that there was a contract between parties herein, it denied that there was an addendum contract. That this is also an issue that goes to the root of the suit. This is more so especially with the tabulation of usurious amount equating to Kshs.380,332,430 that requires the Court’s determination.
9. Order 2 Rule 15 of the Civil Procedure Rules provides as follows: -
Rule 15. (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, and may order the suit to be stayed or dismissed or judgment to be entered accordingly, as the case may be.
10. The principles for consideration before the striking out a defence were aptly captured by the Court of Appeal D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & another [1980] KECA 3 (KLR) highlighted, as follows: -
"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."
11. The Plaintiff in its Plaint averred that;
"4. The Plaintiff was employed by the Contracting Authority, the 1st Defendant herein under the Works Contract financed by the European Development Fund and Government of Kenya to upgrade the Merille - Marsabit Road A2 in Kenya from existing gravel road to paved international standard which works were completed satisfactorily.
5. There remained unsettled claims and payments due to the Plaintiff that were amicably agreed between the parties to amount to Kenya Shillings 499,424,132.00.
6. On 16th August 2021, the 1st Defendant and the Plaintiff executed Addendum No.4 to Works Contract No. FED/202/306-871 formally incorporating the amount of the amicable settlement."
12. The Court notes that paragraphs 4 & 5 of the Defence state as follows;
"4.The Defendants deny the contents of paragraph 5, 6 and 7 of the Plaint and puts the Plaintiff to strict proof. The Plaintiff further avers that the project was completed and all the monies due to the contractor as per the final accounts dated 30/11/2018 were fully settled by the Defendant.
5. The Defendants denies signing any addendum to the contract no. FED/202/306-871 as alleged in paragraph 8 of the Plaint and thus deny owing the Plaintiff any dues and put the Plaintiff to strict proof thereof."
13. Firstly, it is common ground that there was a contract between the parties herein, however, the Defendants deny that there was an Addendum to the contract as alleged by the Plaintiff.
14. Secondly, it is the Court’s understanding that while the Plaintiff held the position that some payments were made by the 1st Defendant to the Plaintiff and some outstanding charges accrued; the Defendants stated that all the monies that were due and owing to the Plaintiff were fully settled. That therefore according to the Defendants there are no dues owing to the Plaintiff.
15. The Court’s analysis of the Defence paragraphs above shows that the issue concerning the amount owing is disputed and therefore warrants the intervention of the Court. The Court is therefore called upon to make a determination as to whether there are such payments due and payable. This issue can only be addressed through a trial. Thus, the Statement of Defence raises a triable issue and cannot be referred to as a sham. At least no such sufficient materials or evidence have been placed before this Court to warrant it to make such a finding.
16. The Applicant also pointed out that the Defendants have not filed any Witness Statements or Documents in support of their Defence in breach of Order 7 Rule 5 of the Civil Procedure Rules . It provides;
Documents to accompany defence or counterclaim [Order 7, rule 5]
The defence and counterclaim filed under rule 1 and 2 shall be accompanied by—
(a) an affidavit under Order 4 rule 1(2) where there is a counterclaim;
(b) a list of witnesses to be called at the trial;
(c) written statements signed by the witnesses except expert witnesses; and
(d) copies of documents to be relied on at the trial.
17. Indeed, the Defendants have not filed any Witness Statement or Documents in support of their Defence as required under the Civil Procedure Rules. In the case of J efitha Muchai Mwai versus Peter Wangio Thuku [2015] eKLR , the Court held:
“ …If a party inadvertently leaves out a verifying affidavit or any other document like a statement, he/she could be given a chance to file one and the matter can proceed for determination on merit. If the other party is affected by the attendant delay, appropriate costs should adequately address the problem…”
18. The Court adopts the view of the Court in the above case and finds that the said defect is not fatal as it can be cured by allowing the Defendants' Witness Statement or Documents in support of their Defence. In any event the matter has not been listed for Pre-trials. It may well be that the Defendants will not be relying on any witnesses or filing any documents. That information will no doubt come out once the parties take the next procedural steps to get the matter ready for trial.
19. In light of the above, the Court finds that the Applicant has not made out a case for striking out the Respondents Statement of Defence. The Application lacks merit and is hereby dismissed.
20. As to cost, the same lie at the discretion of this Court. The Court directs that the costs will abide the outcome of this suit.
Determination
21. The Plaintiff’s Application by way of a Notice of Motion dated 20th June, 2024 is hereby dismissed for lack of merits.
22. The Costs be in the cause and do abide the outcome of the suit.
23. It is so ordered.
DATED, SIGNED AND DELIVERED AT MILIMANI THIS 31ST DAY OF JULY, 2025 .
NJOROGE BENJAMIN K.
JUDGE
In the presence of;
Mr. Misaro for the Plaintiff/Applicant.
Miss Murugi for the Defendants/Respondents
Mr. Amos – Court Assistant