REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MALINDI
APPELLATE SIDE
CIVIL APPEAL NO. E135B OF 2023
(Coram: Andayi W. F, J.)
LEMOYAN OLONANA SARKAY............................. …………………………APPELLANT
VERSUS
BORSOTTI LUIGI MARIO..........................................………………………RESPONDENT
(Being an appeal from the Ruling and Order of Hon. O. Onalo, Resident Magistrate, in Malindi Magistrate’s Court Civil Suit No. 129 of 2023 delivered on 8 th September 2023)
JUDGMENT
1. This appeal was filed through the memorandum dated 8 th September 2023. It seeks to set aside the order of the learned trial magistrate arising from a ruling delivered on 8 th September 2023. In the ruling the learned magistrate dismissed the appellant’s application dated 19 th May 2023 that sought to strike out the respondent’s suit. The same ruling allowed in part the respondent’s application dated 4 th May 2023 that sought various orders against the appellant namely, injunction pending hearing and determination of the suit from selling, disposing of and/or transferring motor vehicle registration number KCQ 029V then detained at Malindi police station and restraining the appellant from harassing the respondent and from visiting the respondent’s residence.
2. A background to the matter should help to place the appeal into context. For clarity, for purposes of the background, due to the two different applications before the trial court whereby the parties were interchangeably applicant and respondent, I will refer to the parties by the titles which they are litigating before the trial court; the appellant as defendant and the respondent as plaintiff.
3. Through the plaint dated 4 th May 2023, the plaintiff sued the defendant seeking various orders. The plaintiff averred that he is a male adult from Italy, while the defendant is a male adult from Kenya. They have been friends since 2017. The plaintiff visits Kenya on a tourist visa.
4. As friends, the plaintiff lent the defendant some undisclosed amount of money. Along the way, at the suggestion of the plaintiff, they ventured into a tour van hiring business. The plaintiff financed the purchase of the tour van registration number KCQ 029V, Toyota Land Cruiser, for the business on the agreement that it would be registered in the name of the plaintiff.
5. The defendant financed the purchase of a second tour van for the same business and their understanding was that it would also be registered in the name of the plaintiff.
6. Afterwards the parries opened a joint account with KCB Bank (K) Ltd where the proceeds of the business would be deposited. The business is operated by the defendant. However, the defendant has failed to account for the proceeds of the business to the plaintiff thereby prompting the plaintiff to file suit in court through the plaint dated 4 th May 2023 claiming for orders that:
a. The plaintiff be granted the physical possession of the motor vehicle.
b. The defendant be compelled to transfer the motor vehicle registration number KCQ 029V to the plaintiff.
c. The plaintiff be awarded proceeds of the business since 2018 amounting to KShs 15,300,000/=.
d. Costs of the suit be awarded to the plaintiff.
e. The court may grant any further orders as it may deem fit.
7. There are some averments in the plaint referring to children but I believe they are mere surplusage occasioned by failure to thoroughly check the pleadings.
8. In response, the defendant filed a statement of defence dated 22 nd May 2023 and largely denied the plaintiff’s claim. He conceded that they were friends and that the plaintiff advanced him a soft friendly loan from which he commenced the tour business. He has been repaying the loan. A substantial amount of it has been repaid and a small amount remains which he continues to repay.
9. The defendant averred that he could not have jointly ventured into any business with the plaintiff who is a foreigner and lacks a business permit to operate any business in Kenya.
10. The defendant conceded that they opened a joint account in their respective names but averred that it was not for purposes of operating the business but for purposes of him depositing the loan repayments for the plaintiff and also for the defendant assisting the plaintiff to book for his stay in Kenya when he visited. He averred that he does not owe the plaintiff any duty to account for the proceeds of his sole tour business.
11. The defendant therefore prayed that the plaintiff’s suit against him be dismissed with costs.
12. At the same time of filing the suit, the plaintiff filed the application dated 4 th May 2023 expressed to be under section 1A, 1B and 3A of the Civil Procedure Act (Cap. 21) Laws of Kenya, and Order 2 Rule 15, Order 32 Rule 10, Order 34 Rule 3 of the Civil Procedure Rules and all other enabling provisions of the law.
13. The application was seeking orders that pending the hearing and determination of the suit he be granted the physical and actual possession of the subject motor vehicle that was detained at Malindi police station and that the defendant be restrained from selling, disposing of or transferring the subject vehicle.
14. Further that orders be issued against the defendant from harassing the plaintiff and that the defendant be restrained from visiting the plaintiff’s residence.
15. The grounds in support of the application as contained on the face thereof and in the supporting affidavit of Borsotti Luigi Mario, the plaintiff, sworn on 3 rd May 2023 were basically a reiteration of the averments in the plaint. He further deposed providing details through his bank account statements of the money he had given out to the defendant for assistance, for purchase of the first vehicle and for the maintenance of the two vehicles. He also provided a copy of a bank statement showing the money he had deposited into the bank account jointly opened by them but added that only the defendant had access to the account.
16. He deposed further that contrary to their initial agreement between the two of them that the vehicles be registered in the plaintiff’s name, the defendant had registered it in his name.
17. The defendant opposed the application through his replying affidavit sworn on 22 nd May 2026. He also basically reiterated the averments he made in his statement of defence as outlined above.
18. The defendant then filed his application dated 19 th May 2023 expressed to be brought under section 1A, 1B and 3A of the Civil Procedure Act, section 45 of the Kenya Citizen and Immigration Act (cap. 171) Laws of Kenya. The application was seeking for an order that the plaintiff’s suit be struck out on grounds that the plaintiff being a tourist to Kenya, he could not engage in any form of business without a work or business permit which he lacked. He deposed in his supporting affidavit sworn on 19 th May 2023 that any purported business venture as alleged by the plaintiff was illegal as being against the Kenya Citizenship and Immigration Act (Cap. 171) Laws of Kenya and could not give rise to a cause of action.
19. The applications were disposed of in one ruling, dated 8 th September 2023, the subject of this appeal. The appeal is only on the dismissal of the defendant’s application to strike out the suit.
20. The appellant was dissatisfied with the decision and has filed the present appeal based on six grounds but which are basically one ground that the trial court erred in both law and fact by allowing the suit that was based on an illegality, for being in breach of the provisions of the Kenya Citizenship and Immigration Act, to proceed which in effect was a failure to appreciate the doctrine of ex turpi causa non oritur actio or that “no cause of action arises from a base cause” and a court will not lend its authority to agreements that contradict the law or public policy or are for immoral purposes.
21. The appeal was disposed of on the written submissions of the appellant. The respondent has not filed submissions. The appellant set out the following issue for determination:
a. Whether or not the law permits the respondent and the appellant to do business within the territories of the Republic of Kenya.
b. Whether or not a court of law can sanction the business herein.
c. Whether or not there is a valid cause of action herein.
22. This is a first appeal. The duty of this court is to examine, re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. This is the position as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 on a first appeal from the High Court to the Court of Appeal that:
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
23. I have considered the grounds of appeal herein, the record of appeal, the submissions by learned counsel for the appellant and the ruling of the learned trial magistrate. The issue for determination in this appeal is whether the application by the appellant met the threshold for striking out a pleading and whether the learned trial magistrate was right or wrong in the exercise of her discretion in declining to strike out the suit by the plaintiff on account of illegality.
24. Learned counsel for the appellant submits that due to the alleged illegality there is no cause of action capable of being entertained by a court of law.
25. The law governing the striking out of pleadings is provided for under Order 2 Rule 15 of the Civil Procedure Rules as follows:
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.
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.
3) So far as applicable this rule shall apply to an originating summons and a petition.
26. In the case of D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & another [1980] KECA 3 (KLR) the Court of Appeal laid out the principles for the court to consider in an application for striking out a pleading as follows:
“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 inforgmed so as to deal with the merits "without discovery, without oral evidence tested by cross-examination in the ordinary way". (Sellers, L.J. (supra)). As far as possible, indeed not at all, there should be no opinions 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 it right.
If an action is explainable as a likely happening which is not plainly and obviously impossible the court ought not to overact by considering itself in a bind summarily to dismiss the action. A court of justice should aim at sustaining a suit rather than terminating it by summary dismissal. Normally a law suit is for pursuing it.
No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action, and is so weak as to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a court of justice ought not to act in darkness without the full facts of a case before it.
On the other hand, if there is a point of law which merits a serious discussion the court should be asked to proceed under order XIV" rule 2.”
27. Although not expressly stated in the application, it is apparent that the appellant’s application for striking out the suit filed by the respondent was premised on the grounds provided for in Rule 15(1)(a) of Order 2 Rule 15 CPR that the suit does not disclose any reasonable cause of action. Under Rule 15(2), no evidence is admissible to prove the allegation.
28. The appellant asked the trial court to strike out the suit by the respondent for allegedly being founded on an illegality, a breach of section 53(1)(m) of the Kenya Citizenship and Immigration Act which provides that:
“a person who not being a citizen of Kenya, engages in any employment, occupation, trade, business or profession, whether or not for profit or reward, without being authorized to do so by a work permit, or exempted from this provision by regulations made under this Act commits an offence.”
29. From this provision, there is no doubt that the law prohibits non-Kenyan citizens from engaging in any employment, occupation, trade, business or profession without a work permit or exemption. Therefore, a person engaging in a business in violation of the law as set out in the said section commits an offence as the same is illegal.
30. The position in law is that a court cannot enforce an illegal contract or a contract based on an illegality especially where the party seeking the aid of the court was a participant and stood to derive a benefit from it. I am guided in this case by various cases, some of which are cited by learned counsel for the appellant. The cases are Mastermind Tobacco (K) Limited v Romano [2023] KECA 635 (KLR) , Kenya Airways Limited v Flora [2013] KECA 545 (KLR) both from the Court of Appeal and Five Fourty Aviation Limited v Richard Oloka [2015] KEHC 7096 (KLR) from the High Court. From these decisions the following principles can be distilled from the findings of the superior courts with regard to enforcement of an illegal contract which is based on the legal maxim Ex turpi Causa non oritur action:
i. No person can claim any right or remedy whatsoever under an illegal transaction in which he/she has participated. The Court is bound to veto the enforcement of a contract once it knows that it is illegal whether that knowledge comes from the statement of the guilty party or from outside.
ii. If a statute prohibits the contract, it is unenforceable whether the parties meant to break the law or not.
iii. No Court ought to enforce an illegal contract or allow itself to be made the instrument of enforcing obligations alleged to arise out of the contract or transaction which is illegal, if the illegality is duly brought to the notice of the Court, and if the person invoking the aid of the Court is himself implicated in the illegality. It matters not whether the defendant has pleaded the illegality or whether he has not. If the evidence adduced by the plaintiff proves the illegality, the Court ought not to assist him.”
iv. No Court ought to enforce an illegal contract where the illegality is brought to its notice and if the person invoking the aid of the Court is himself implicated in the illegality.
v. In order for the doctrine to act as a defence to the claim, there must be illegal performance of the contract by one party to the contract and knowledge that illegal performance and participation in it by the other party to the contact.”
31. It is the appellant’s case that the respondent has declared in affidavit supporting his application his immigration status as that of a tourist. The trial court and this court have to be cautious not to engage in a mini-trial of the issues raised which can only be determined at the full trial when evidence thereon has been tendered.
32. Whereas it is true that the respondent has made such averments in the plaint and depositions in the supporting affidavit to his application, I do not find that to be sufficient evidence to show that he does not possess a business permit to enable him to conduct business in Kenya. That issue would properly be determined at the hearing of the case when all the evidence will have come in and the respondent is subjected to cross-examination of his immigration status.
33. More importantly, whereas it is true that a cause of action cannot be founded on an illegal act or omission, it has long been accepted that the illegality of part of a contract does not necessarily make the entire contract unenforceable (see Pigot's Case, II Co. Rep. 26b, 77 Eng. Repr. 1177 (1614) and 3 WILLISTON, CONTRACTS , sec. 1779 et seq. (1920) as cited in CONTRACTS - ILLEGALITY - EFFECT OF PARTIAL ILLEGALITY, 33 MICH. L. REV. 278 (1934). Available at: https://repository.law.umich.edu/mlr/vol33/iss2/6).There is an exception to the general rule where the transaction is partially illegal, so that the illegal and legal portions can be severed and the legal part remains enforceable. In the present case the parties are in agreement that the respondent advanced money to the appellant before the issue of venturing into the tour business was mooted. It is also not disputed that the appellant financed the purchase of the first tour van. The appellant has conceded by pleading in his statement of defence that in fact that was a loan advanced to him by the respondent. His dispute is that he was meant to enter into a joint business venture with the respondent. One of the respondent’s prayers is that the vehicle be put in his possession.
34. It appears to me that on the basis of those express averments in the pleadings, the respondent’s case against the appellant cannot be described as hopeless and beyond redemption as to warrant striking out as prayed for by the appellant before the trial court. I think that in line with the principles for striking out pleadings set out in the decisions cited above, if necessary, the suit can be salvaged by amendment such that the issue of the parties carrying on a joint business is severed from that of the money lent to the appellant which would form a cause of action that is not based on the illegality of the business venture, in case it is the case that the respondent had no work permit to conduct business in Kenya.
35. The learned trial magistrate found in her ruling that at that stage, all the facts of the case on how the parties were conducting their affairs with regard to the business had not come in and so it would be premature to determine the issue of illegality. I am satisfied that the learned trial magistrate was trying to explain the same thing that this court has found above that if the agreement on the funding of the business could be severed, then the respondent still had a cause of action to enforce against the appellant.
36. I am satisfied that the learned trial magistrate was right in dismissing the appellant’s application for not meeting the threshold for striking out a pleading. The decision by learned trial magistrate is hereby affirmed.
37. I therefore find the appeal herein to be without merit and dismiss the same with no orders as to costs.
38. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual Platform Microsoft Teams this 25 th day of May 2026 in the presence of:
N/A for the appellant
N/A for the respondent.
Ummu: Court assistant.
ANDAYI W. FRANCIS
JUDGE
HC CA No. E135B of 202313/ILLEGAL CONTRACT-LACK OF WORK PERMIT.
IN THE HIGH COURT OF KENYA AT MALINDI
APPELLATE SIDE
CIVIL APPEAL NO. E135B OF 2023
(Coram: Andayi W. F, J.)
LEMOYAN OLONANA SARKAY............................. …………………………APPELLANT
VERSUS
BORSOTTI LUIGI MARIO..........................................………………………RESPONDENT
(Being an appeal from the Ruling and Order of Hon. O. Onalo, Resident Magistrate, in Malindi Magistrate’s Court Civil Suit No. 129 of 2023 delivered on 8 th September 2023)
JUDGMENT
1. This appeal was filed through the memorandum dated 8 th September 2023. It seeks to set aside the order of the learned trial magistrate arising from a ruling delivered on 8 th September 2023. In the ruling the learned magistrate dismissed the appellant’s application dated 19 th May 2023 that sought to strike out the respondent’s suit. The same ruling allowed in part the respondent’s application dated 4 th May 2023 that sought various orders against the appellant namely, injunction pending hearing and determination of the suit from selling, disposing of and/or transferring motor vehicle registration number KCQ 029V then detained at Malindi police station and restraining the appellant from harassing the respondent and from visiting the respondent’s residence.
2. A background to the matter should help to place the appeal into context. For clarity, for purposes of the background, due to the two different applications before the trial court whereby the parties were interchangeably applicant and respondent, I will refer to the parties by the titles which they are litigating before the trial court; the appellant as defendant and the respondent as plaintiff.
3. Through the plaint dated 4 th May 2023, the plaintiff sued the defendant seeking various orders. The plaintiff averred that he is a male adult from Italy, while the defendant is a male adult from Kenya. They have been friends since 2017. The plaintiff visits Kenya on a tourist visa.
4. As friends, the plaintiff lent the defendant some undisclosed amount of money. Along the way, at the suggestion of the plaintiff, they ventured into a tour van hiring business. The plaintiff financed the purchase of the tour van registration number KCQ 029V, Toyota Land Cruiser, for the business on the agreement that it would be registered in the name of the plaintiff.
5. The defendant financed the purchase of a second tour van for the same business and their understanding was that it would also be registered in the name of the plaintiff.
6. Afterwards the parries opened a joint account with KCB Bank (K) Ltd where the proceeds of the business would be deposited. The business is operated by the defendant. However, the defendant has failed to account for the proceeds of the business to the plaintiff thereby prompting the plaintiff to file suit in court through the plaint dated 4 th May 2023 claiming for orders that:
a. The plaintiff be granted the physical possession of the motor vehicle.
b. The defendant be compelled to transfer the motor vehicle registration number KCQ 029V to the plaintiff.
c. The plaintiff be awarded proceeds of the business since 2018 amounting to KShs 15,300,000/=.
d. Costs of the suit be awarded to the plaintiff.
e. The court may grant any further orders as it may deem fit.
7. There are some averments in the plaint referring to children but I believe they are mere surplusage occasioned by failure to thoroughly check the pleadings.
8. In response, the defendant filed a statement of defence dated 22 nd May 2023 and largely denied the plaintiff’s claim. He conceded that they were friends and that the plaintiff advanced him a soft friendly loan from which he commenced the tour business. He has been repaying the loan. A substantial amount of it has been repaid and a small amount remains which he continues to repay.
9. The defendant averred that he could not have jointly ventured into any business with the plaintiff who is a foreigner and lacks a business permit to operate any business in Kenya.
10. The defendant conceded that they opened a joint account in their respective names but averred that it was not for purposes of operating the business but for purposes of him depositing the loan repayments for the plaintiff and also for the defendant assisting the plaintiff to book for his stay in Kenya when he visited. He averred that he does not owe the plaintiff any duty to account for the proceeds of his sole tour business.
11. The defendant therefore prayed that the plaintiff’s suit against him be dismissed with costs.
12. At the same time of filing the suit, the plaintiff filed the application dated 4 th May 2023 expressed to be under section 1A, 1B and 3A of the Civil Procedure Act (Cap. 21) Laws of Kenya, and Order 2 Rule 15, Order 32 Rule 10, Order 34 Rule 3 of the Civil Procedure Rules and all other enabling provisions of the law.
13. The application was seeking orders that pending the hearing and determination of the suit he be granted the physical and actual possession of the subject motor vehicle that was detained at Malindi police station and that the defendant be restrained from selling, disposing of or transferring the subject vehicle.
14. Further that orders be issued against the defendant from harassing the plaintiff and that the defendant be restrained from visiting the plaintiff’s residence.
15. The grounds in support of the application as contained on the face thereof and in the supporting affidavit of Borsotti Luigi Mario, the plaintiff, sworn on 3 rd May 2023 were basically a reiteration of the averments in the plaint. He further deposed providing details through his bank account statements of the money he had given out to the defendant for assistance, for purchase of the first vehicle and for the maintenance of the two vehicles. He also provided a copy of a bank statement showing the money he had deposited into the bank account jointly opened by them but added that only the defendant had access to the account.
16. He deposed further that contrary to their initial agreement between the two of them that the vehicles be registered in the plaintiff’s name, the defendant had registered it in his name.
17. The defendant opposed the application through his replying affidavit sworn on 22 nd May 2026. He also basically reiterated the averments he made in his statement of defence as outlined above.
18. The defendant then filed his application dated 19 th May 2023 expressed to be brought under section 1A, 1B and 3A of the Civil Procedure Act, section 45 of the Kenya Citizen and Immigration Act (cap. 171) Laws of Kenya. The application was seeking for an order that the plaintiff’s suit be struck out on grounds that the plaintiff being a tourist to Kenya, he could not engage in any form of business without a work or business permit which he lacked. He deposed in his supporting affidavit sworn on 19 th May 2023 that any purported business venture as alleged by the plaintiff was illegal as being against the Kenya Citizenship and Immigration Act (Cap. 171) Laws of Kenya and could not give rise to a cause of action.
19. The applications were disposed of in one ruling, dated 8 th September 2023, the subject of this appeal. The appeal is only on the dismissal of the defendant’s application to strike out the suit.
20. The appellant was dissatisfied with the decision and has filed the present appeal based on six grounds but which are basically one ground that the trial court erred in both law and fact by allowing the suit that was based on an illegality, for being in breach of the provisions of the Kenya Citizenship and Immigration Act, to proceed which in effect was a failure to appreciate the doctrine of ex turpi causa non oritur actio or that “no cause of action arises from a base cause” and a court will not lend its authority to agreements that contradict the law or public policy or are for immoral purposes.
21. The appeal was disposed of on the written submissions of the appellant. The respondent has not filed submissions. The appellant set out the following issue for determination:
a. Whether or not the law permits the respondent and the appellant to do business within the territories of the Republic of Kenya.
b. Whether or not a court of law can sanction the business herein.
c. Whether or not there is a valid cause of action herein.
22. This is a first appeal. The duty of this court is to examine, re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. This is the position as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 on a first appeal from the High Court to the Court of Appeal that:
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
23. I have considered the grounds of appeal herein, the record of appeal, the submissions by learned counsel for the appellant and the ruling of the learned trial magistrate. The issue for determination in this appeal is whether the application by the appellant met the threshold for striking out a pleading and whether the learned trial magistrate was right or wrong in the exercise of her discretion in declining to strike out the suit by the plaintiff on account of illegality.
24. Learned counsel for the appellant submits that due to the alleged illegality there is no cause of action capable of being entertained by a court of law.
25. The law governing the striking out of pleadings is provided for under Order 2 Rule 15 of the Civil Procedure Rules as follows:
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.
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.
3) So far as applicable this rule shall apply to an originating summons and a petition.
26. In the case of D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & another [1980] KECA 3 (KLR) the Court of Appeal laid out the principles for the court to consider in an application for striking out a pleading as follows:
“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 inforgmed so as to deal with the merits "without discovery, without oral evidence tested by cross-examination in the ordinary way". (Sellers, L.J. (supra)). As far as possible, indeed not at all, there should be no opinions 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 it right.
If an action is explainable as a likely happening which is not plainly and obviously impossible the court ought not to overact by considering itself in a bind summarily to dismiss the action. A court of justice should aim at sustaining a suit rather than terminating it by summary dismissal. Normally a law suit is for pursuing it.
No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action, and is so weak as to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a court of justice ought not to act in darkness without the full facts of a case before it.
On the other hand, if there is a point of law which merits a serious discussion the court should be asked to proceed under order XIV" rule 2.”
27. Although not expressly stated in the application, it is apparent that the appellant’s application for striking out the suit filed by the respondent was premised on the grounds provided for in Rule 15(1)(a) of Order 2 Rule 15 CPR that the suit does not disclose any reasonable cause of action. Under Rule 15(2), no evidence is admissible to prove the allegation.
28. The appellant asked the trial court to strike out the suit by the respondent for allegedly being founded on an illegality, a breach of section 53(1)(m) of the Kenya Citizenship and Immigration Act which provides that:
“a person who not being a citizen of Kenya, engages in any employment, occupation, trade, business or profession, whether or not for profit or reward, without being authorized to do so by a work permit, or exempted from this provision by regulations made under this Act commits an offence.”
29. From this provision, there is no doubt that the law prohibits non-Kenyan citizens from engaging in any employment, occupation, trade, business or profession without a work permit or exemption. Therefore, a person engaging in a business in violation of the law as set out in the said section commits an offence as the same is illegal.
30. The position in law is that a court cannot enforce an illegal contract or a contract based on an illegality especially where the party seeking the aid of the court was a participant and stood to derive a benefit from it. I am guided in this case by various cases, some of which are cited by learned counsel for the appellant. The cases are Mastermind Tobacco (K) Limited v Romano [2023] KECA 635 (KLR) , Kenya Airways Limited v Flora [2013] KECA 545 (KLR) both from the Court of Appeal and Five Fourty Aviation Limited v Richard Oloka [2015] KEHC 7096 (KLR) from the High Court. From these decisions the following principles can be distilled from the findings of the superior courts with regard to enforcement of an illegal contract which is based on the legal maxim Ex turpi Causa non oritur action:
i. No person can claim any right or remedy whatsoever under an illegal transaction in which he/she has participated. The Court is bound to veto the enforcement of a contract once it knows that it is illegal whether that knowledge comes from the statement of the guilty party or from outside.
ii. If a statute prohibits the contract, it is unenforceable whether the parties meant to break the law or not.
iii. No Court ought to enforce an illegal contract or allow itself to be made the instrument of enforcing obligations alleged to arise out of the contract or transaction which is illegal, if the illegality is duly brought to the notice of the Court, and if the person invoking the aid of the Court is himself implicated in the illegality. It matters not whether the defendant has pleaded the illegality or whether he has not. If the evidence adduced by the plaintiff proves the illegality, the Court ought not to assist him.”
iv. No Court ought to enforce an illegal contract where the illegality is brought to its notice and if the person invoking the aid of the Court is himself implicated in the illegality.
v. In order for the doctrine to act as a defence to the claim, there must be illegal performance of the contract by one party to the contract and knowledge that illegal performance and participation in it by the other party to the contact.”
31. It is the appellant’s case that the respondent has declared in affidavit supporting his application his immigration status as that of a tourist. The trial court and this court have to be cautious not to engage in a mini-trial of the issues raised which can only be determined at the full trial when evidence thereon has been tendered.
32. Whereas it is true that the respondent has made such averments in the plaint and depositions in the supporting affidavit to his application, I do not find that to be sufficient evidence to show that he does not possess a business permit to enable him to conduct business in Kenya. That issue would properly be determined at the hearing of the case when all the evidence will have come in and the respondent is subjected to cross-examination of his immigration status.
33. More importantly, whereas it is true that a cause of action cannot be founded on an illegal act or omission, it has long been accepted that the illegality of part of a contract does not necessarily make the entire contract unenforceable (see Pigot's Case, II Co. Rep. 26b, 77 Eng. Repr. 1177 (1614) and 3 WILLISTON, CONTRACTS , sec. 1779 et seq. (1920) as cited in CONTRACTS - ILLEGALITY - EFFECT OF PARTIAL ILLEGALITY, 33 MICH. L. REV. 278 (1934). Available at: https://repository.law.umich.edu/mlr/vol33/iss2/6).There is an exception to the general rule where the transaction is partially illegal, so that the illegal and legal portions can be severed and the legal part remains enforceable. In the present case the parties are in agreement that the respondent advanced money to the appellant before the issue of venturing into the tour business was mooted. It is also not disputed that the appellant financed the purchase of the first tour van. The appellant has conceded by pleading in his statement of defence that in fact that was a loan advanced to him by the respondent. His dispute is that he was meant to enter into a joint business venture with the respondent. One of the respondent’s prayers is that the vehicle be put in his possession.
34. It appears to me that on the basis of those express averments in the pleadings, the respondent’s case against the appellant cannot be described as hopeless and beyond redemption as to warrant striking out as prayed for by the appellant before the trial court. I think that in line with the principles for striking out pleadings set out in the decisions cited above, if necessary, the suit can be salvaged by amendment such that the issue of the parties carrying on a joint business is severed from that of the money lent to the appellant which would form a cause of action that is not based on the illegality of the business venture, in case it is the case that the respondent had no work permit to conduct business in Kenya.
35. The learned trial magistrate found in her ruling that at that stage, all the facts of the case on how the parties were conducting their affairs with regard to the business had not come in and so it would be premature to determine the issue of illegality. I am satisfied that the learned trial magistrate was trying to explain the same thing that this court has found above that if the agreement on the funding of the business could be severed, then the respondent still had a cause of action to enforce against the appellant.
36. I am satisfied that the learned trial magistrate was right in dismissing the appellant’s application for not meeting the threshold for striking out a pleading. The decision by learned trial magistrate is hereby affirmed.
37. I therefore find the appeal herein to be without merit and dismiss the same with no orders as to costs.
38. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual Platform Microsoft Teams this 25 th day of May 2026 in the presence of:
N/A for the appellant
N/A for the respondent.
Ummu: Court assistant.
ANDAYI W. FRANCIS
JUDGE
HC CA No. E135B of 202313/ILLEGAL CONTRACT-LACK OF WORK PERMIT.