1. For ruling is the Defendants’ (hereinafter ‘Applicants’) Notice of Motion Application dated 07/04/2026. The application is brought pursuant to the provisions of sections 1A, 1B and 3A of the Civil Procedure Act, Order 1 Rule 10 (2), 2 Rule 15, Order 5 Rules 21 &22, Order 51 Rules 1 & 3 of the Civil Procedure Rules and Article 159 of the Constitution of Kenya, and other applicable provisions of the law. It seeks the following orders: -
a) That Amended Plaint to be struck out for being defective.
b) That the suit against the 3rd and 4th Defendants be struck out for non-disclosure of reasonable action against them.
c) That the suit against the 4th Defendant be struck out for want of jurisdiction.
d) That the costs of this application and suit be granted to the Defendants.
2. The grounds in support of the application is that the Amended Plaint is fatally defective for non-compliance with the mandatory provisions of the law, as it is impossible to discern the supposed amendments. The quantum of damages is not disclosed hence the jurisdiction of this court is in question. Further, the court lacks jurisdiction over the 4th Defendant as the Plaintiff did not comply with Order 5 on service outside jurisdiction. The Applicants sought to have the application allowed with costs.
3. The Plaintiff/ Respondent filed Grounds of Opposition and Replying Affidavit, both dated 11/05/2026 stated that the Defendants were yet to file their Statement of Defence despite the court orders to do so. She also stated that the defects in the Amended Plaint if any are curable under Article 159 (2) (d) of the Constitution and section 1A and 1B of the Civil Procedure Act. On the 3rd and 4th Defendant, the Respondent stated that their being party to the suit is proper and necessary as material allegations against them have been pleaded. She prayed that the application be dismissed with costs.
4. Directions were taken to have the application canvassed by way of written submissions. Both parties complied by filing their rival submissions.
Analysis & Determination
5. This Court has carefully considered the application supporting affidavit, the responses thereto, the submissions as well as the law and the following issues falls for this Court’s determination: -
a) Whether the Amended Plaint is incurably defective
b) Whether the suit should be dismissed
c) If a cause of action is established against the Defendant, whether the court has jurisdiction over the 4th Defendant.
d) Who bears the costs?
6. Order 2 Rule 15 of the Civil Procedure Code which deals with striking out of pleadings and 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.”
7. The Applicants submits that the Amended Plaint is scandalous, frivolous and vexatious as it is impossible to discern what is being amended and the precise issues to be answered. On the other hand, the Respondents states that in the event the Amended Plaint is defective, the same can be cured by Article 159 (2) (d) of the Constitution.
8. Order 8 Rule 7 of the Civil Procedure Rules provides as follows;
(1) Every pleading and other documents amended under this Order shall be endorsed with the date of the amendment and either the date of the order allowing the amendment or, if no order has been made, the number of the rule in pursuance of which the amendment was made.
(2) All amendments shall be shown by striking out in red ink all deleted words, but in such a manner as to leave them legible, and by underlining in red ink all added words.
(3) Colours other than red shall be used for further amendments to the same document.
9. The mode of amendment is in mandatory terms. I have perused through the Amended Plaint dated 10/03/2026. It does not bear the date of amendment, it is impossible to discern what has been deleted and what has been added as there is no striking out or underlining f word in red ink. The Respondent in her Replying Affidavit stated that the requirement of the use of the red ink was not mandatory. The Amended Plaint is in clear violation of the above rule.
10. With the said violation, it is practically impossible for the Applicants to understand the amendments to enable them respond. This explains the reason as to why the Defendants are yet to file their Statement of Defence. In this regard, Article 159 (2) (d) cannot come to the aid of the Respondent.
11. In the case of Co-operative Insurance Company of Kenya Limited v Paem Agencies Company Limited [2014] eKLR, the court held as follows;
“Any pleadings and or documents relied upon by the parties should be self-explanatory. The court finds that the issue of the underlining of the amended parts in red and the heading of the draft pleading is not a procedural technicality that could be saved by the provisions of Article 159(2)(d) of the Constitution of Kenya, 2010. Rather it is a fundamental error that goes into the root of the Plaintiff’s application as it sought that the Amended Plaint be filed and served in terms of the draft Amended Plaint…
The court does not look kindly at parties who do not adhere and follow the laid down procedures and rules. For the reason that the Plaintiff failed to comply with the provisions of Order 8 Rule 7 (2) of the Civil Procedure Rules, 2010, its application would not succeed.”
12. The Amended Plaint is fatally defective and is hereby struck out.
13. I now peruse the Plaint dated 22/05/2025. I note the Plaintiff’s Verifying Affidavit is on the face of the Plaint. Order 4 Rules (1) and (2) provides as hereunder;
(1) The plaint shall contain the following particulars—
(a) the name of the court in which the suit is brought;
(b) the name, description and place of residence of the plaintiff, and an address for service;
(c) the name, description and place of residence of the defendant, so far as they can be ascertained;
(d) the place where the cause of action arose;
(e) where the plaintiff or defendant is a minor or person of unsound mind, a statement to that effect; and
(f) an averment that there is no other suit pending, and that there have been no previous proceedings, in any court between the plaintiff and the defendant over the same subject matter and that the cause of action relates to the plaintiff named in the plaint.
(2) The plaint shall be accompanied by an affidavit sworn by the plaintiff verifying the correctness of the averments contained in rule 1(1)(f) above.
14. The Verifying Affidavit by the Plaintiff does not comply with Order 4 Rule 2 as stated herein above. This is a procedural irregularity that can be cured under Article 159 (2) of the Constitution. The Plaintiff ought to comply with the above requirement before the case management conference.
15. On whether there is cause of action established, the Applicants’ application is made under Rule 15 (1) (a) which as guided by Rule 15 (2), no evidence is required. In Jevaj Shariff & Co. v Chotail Pharmacy Stores [1960] EA 374, the East Africa Court of Appeal stated as follows: -
“…The question whether a plaint discloses a cause of action must be determined upon a perusal of the plaint alone, together with anything attached so as to form part of it, and upon the assumption that any express or implied allegations of fact in it are true…”
16. Guided by the above decision, this court should not travel beyond the plaint and any attachments thereto. The Plaintiff seeks award of general and special damages in alleged breach of intellectual property rights. The Respondent should therefore not be driven from the seat of justice at the preliminary state. Upon hearing of the suit, only then can the court determine whether or not there was a breach of rights as alleged.
17. In Crescent Construction Co. Ltd v Delphis Bank Ltd (2007) eKLR, the Court of Appeal held as follows: -
“…However, one thing remains clear, and that is that the power to strike out a pleading is a discretionary one. It is to be exercised with the greatest care and caution. This comes from the realization that the rules of natural justice require that the court must not drive away any litigant however weak his case may be from the seat of justice. This is a time-honoured legal principle. At the same time, it is unfair to drag a person to the seat of justice when the case purportedly brought against him is a non-starter…”
18. Further, in D.T. Dobie & Company (Kenya) Ltd v Muchina (1982) KLR 1 the Court of Appeal held as follows: -
“…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…”
19. I find that the suit should be allowed to go forward where both parties shall exercise their right to be heard.
20. On whether the court has discretion over the 4th Defendant which is a foreign company. Order 5 Rule 21, 22 and 22A provides for mode of service out of jurisdiction. The Plaintiff must first seek leave of the court to effect service out of jurisdiction. Order 5 Rule 25 provides as follows;
“Every application for leave to serve such summons or notice on a defendant out of Kenya shall be supported by affidavit or other evidence, stating that in the belief of the deponent the plaintiff has a good cause of action, and showing in what place or country such defendant is or probably may be found, and whether such defendant is not resident in Kenya or not, and the grounds on which the application is made; and no such leave shall be granted unless it is made sufficiently to appear to the court that the case is a proper one for service out of Kenya under this Order.”
21. In clothing the court with the jurisdiction to deal foreign Defendants, the court in Raytheon Aircraft Credit Corporation & another v Air Al-Faraj Limited (2005) eKLR stated as follows;
“The High Court assumes jurisdiction over persons outside Kenya by giving leave, on application by a plaintiff to serve summons or notice of summons, as the case may be, outside the country …. after such summons are served in accordance with the machinery stipulated therein.”
22. The Plaintiff having failed to seek leave of the court in effecting service upon the 4th Defendant, failed to invoke the jurisdiction of this court over the said party. The suit against the 4th Defendant is hereby struck out for want of jurisdiction.
23. On the issue of costs, the same is to follow the outcome of the main suit.
24. The upshot of the foregoing is that the court renders itself as hereunder: -
a) The Notice of Motion Application dated 07/04/2026 partially succeeds and on the following terms;
i. The Amended Plaint dated 10/03/2026 is hereby struck out.
ii. The prayer to strike out the suit is hereby declined.
iii. The Plaintiff to file and serve the Verifying Affidavit within the next 7 days.
iv. The Defendants to file their Statement of Defence within next 14 days.
b) The costs to follow the outcome of the suit.
c) That this being a fast track suit, matter be listed for case management conference before Justice Bitta on 28/07/2026.
Dated and delivered virtually at Mombasa this 25th day of June, 2026.
………………………
HON. F. WANGARI
JUDGE OF THE HIGH COURT
In the presence of;
Plaintiff, present in person
Mr. Ng’ang’a Advocate for the Defendants/Applicants
Ms. Salwa, Court Assistant
a) That Amended Plaint to be struck out for being defective.
b) That the suit against the 3rd and 4th Defendants be struck out for non-disclosure of reasonable action against them.
c) That the suit against the 4th Defendant be struck out for want of jurisdiction.
d) That the costs of this application and suit be granted to the Defendants.
2. The grounds in support of the application is that the Amended Plaint is fatally defective for non-compliance with the mandatory provisions of the law, as it is impossible to discern the supposed amendments. The quantum of damages is not disclosed hence the jurisdiction of this court is in question. Further, the court lacks jurisdiction over the 4th Defendant as the Plaintiff did not comply with Order 5 on service outside jurisdiction. The Applicants sought to have the application allowed with costs.
3. The Plaintiff/ Respondent filed Grounds of Opposition and Replying Affidavit, both dated 11/05/2026 stated that the Defendants were yet to file their Statement of Defence despite the court orders to do so. She also stated that the defects in the Amended Plaint if any are curable under Article 159 (2) (d) of the Constitution and section 1A and 1B of the Civil Procedure Act. On the 3rd and 4th Defendant, the Respondent stated that their being party to the suit is proper and necessary as material allegations against them have been pleaded. She prayed that the application be dismissed with costs.
4. Directions were taken to have the application canvassed by way of written submissions. Both parties complied by filing their rival submissions.
Analysis & Determination
5. This Court has carefully considered the application supporting affidavit, the responses thereto, the submissions as well as the law and the following issues falls for this Court’s determination: -
a) Whether the Amended Plaint is incurably defective
b) Whether the suit should be dismissed
c) If a cause of action is established against the Defendant, whether the court has jurisdiction over the 4th Defendant.
d) Who bears the costs?
6. Order 2 Rule 15 of the Civil Procedure Code which deals with striking out of pleadings and 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.”
7. The Applicants submits that the Amended Plaint is scandalous, frivolous and vexatious as it is impossible to discern what is being amended and the precise issues to be answered. On the other hand, the Respondents states that in the event the Amended Plaint is defective, the same can be cured by Article 159 (2) (d) of the Constitution.
8. Order 8 Rule 7 of the Civil Procedure Rules provides as follows;
(1) Every pleading and other documents amended under this Order shall be endorsed with the date of the amendment and either the date of the order allowing the amendment or, if no order has been made, the number of the rule in pursuance of which the amendment was made.
(2) All amendments shall be shown by striking out in red ink all deleted words, but in such a manner as to leave them legible, and by underlining in red ink all added words.
(3) Colours other than red shall be used for further amendments to the same document.
9. The mode of amendment is in mandatory terms. I have perused through the Amended Plaint dated 10/03/2026. It does not bear the date of amendment, it is impossible to discern what has been deleted and what has been added as there is no striking out or underlining f word in red ink. The Respondent in her Replying Affidavit stated that the requirement of the use of the red ink was not mandatory. The Amended Plaint is in clear violation of the above rule.
10. With the said violation, it is practically impossible for the Applicants to understand the amendments to enable them respond. This explains the reason as to why the Defendants are yet to file their Statement of Defence. In this regard, Article 159 (2) (d) cannot come to the aid of the Respondent.
11. In the case of Co-operative Insurance Company of Kenya Limited v Paem Agencies Company Limited [2014] eKLR, the court held as follows;
“Any pleadings and or documents relied upon by the parties should be self-explanatory. The court finds that the issue of the underlining of the amended parts in red and the heading of the draft pleading is not a procedural technicality that could be saved by the provisions of Article 159(2)(d) of the Constitution of Kenya, 2010. Rather it is a fundamental error that goes into the root of the Plaintiff’s application as it sought that the Amended Plaint be filed and served in terms of the draft Amended Plaint…
The court does not look kindly at parties who do not adhere and follow the laid down procedures and rules. For the reason that the Plaintiff failed to comply with the provisions of Order 8 Rule 7 (2) of the Civil Procedure Rules, 2010, its application would not succeed.”
12. The Amended Plaint is fatally defective and is hereby struck out.
13. I now peruse the Plaint dated 22/05/2025. I note the Plaintiff’s Verifying Affidavit is on the face of the Plaint. Order 4 Rules (1) and (2) provides as hereunder;
(1) The plaint shall contain the following particulars—
(a) the name of the court in which the suit is brought;
(b) the name, description and place of residence of the plaintiff, and an address for service;
(c) the name, description and place of residence of the defendant, so far as they can be ascertained;
(d) the place where the cause of action arose;
(e) where the plaintiff or defendant is a minor or person of unsound mind, a statement to that effect; and
(f) an averment that there is no other suit pending, and that there have been no previous proceedings, in any court between the plaintiff and the defendant over the same subject matter and that the cause of action relates to the plaintiff named in the plaint.
(2) The plaint shall be accompanied by an affidavit sworn by the plaintiff verifying the correctness of the averments contained in rule 1(1)(f) above.
14. The Verifying Affidavit by the Plaintiff does not comply with Order 4 Rule 2 as stated herein above. This is a procedural irregularity that can be cured under Article 159 (2) of the Constitution. The Plaintiff ought to comply with the above requirement before the case management conference.
15. On whether there is cause of action established, the Applicants’ application is made under Rule 15 (1) (a) which as guided by Rule 15 (2), no evidence is required. In Jevaj Shariff & Co. v Chotail Pharmacy Stores [1960] EA 374, the East Africa Court of Appeal stated as follows: -
“…The question whether a plaint discloses a cause of action must be determined upon a perusal of the plaint alone, together with anything attached so as to form part of it, and upon the assumption that any express or implied allegations of fact in it are true…”
16. Guided by the above decision, this court should not travel beyond the plaint and any attachments thereto. The Plaintiff seeks award of general and special damages in alleged breach of intellectual property rights. The Respondent should therefore not be driven from the seat of justice at the preliminary state. Upon hearing of the suit, only then can the court determine whether or not there was a breach of rights as alleged.
17. In Crescent Construction Co. Ltd v Delphis Bank Ltd (2007) eKLR, the Court of Appeal held as follows: -
“…However, one thing remains clear, and that is that the power to strike out a pleading is a discretionary one. It is to be exercised with the greatest care and caution. This comes from the realization that the rules of natural justice require that the court must not drive away any litigant however weak his case may be from the seat of justice. This is a time-honoured legal principle. At the same time, it is unfair to drag a person to the seat of justice when the case purportedly brought against him is a non-starter…”
18. Further, in D.T. Dobie & Company (Kenya) Ltd v Muchina (1982) KLR 1 the Court of Appeal held as follows: -
“…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…”
19. I find that the suit should be allowed to go forward where both parties shall exercise their right to be heard.
20. On whether the court has discretion over the 4th Defendant which is a foreign company. Order 5 Rule 21, 22 and 22A provides for mode of service out of jurisdiction. The Plaintiff must first seek leave of the court to effect service out of jurisdiction. Order 5 Rule 25 provides as follows;
“Every application for leave to serve such summons or notice on a defendant out of Kenya shall be supported by affidavit or other evidence, stating that in the belief of the deponent the plaintiff has a good cause of action, and showing in what place or country such defendant is or probably may be found, and whether such defendant is not resident in Kenya or not, and the grounds on which the application is made; and no such leave shall be granted unless it is made sufficiently to appear to the court that the case is a proper one for service out of Kenya under this Order.”
21. In clothing the court with the jurisdiction to deal foreign Defendants, the court in Raytheon Aircraft Credit Corporation & another v Air Al-Faraj Limited (2005) eKLR stated as follows;
“The High Court assumes jurisdiction over persons outside Kenya by giving leave, on application by a plaintiff to serve summons or notice of summons, as the case may be, outside the country …. after such summons are served in accordance with the machinery stipulated therein.”
22. The Plaintiff having failed to seek leave of the court in effecting service upon the 4th Defendant, failed to invoke the jurisdiction of this court over the said party. The suit against the 4th Defendant is hereby struck out for want of jurisdiction.
23. On the issue of costs, the same is to follow the outcome of the main suit.
24. The upshot of the foregoing is that the court renders itself as hereunder: -
a) The Notice of Motion Application dated 07/04/2026 partially succeeds and on the following terms;
i. The Amended Plaint dated 10/03/2026 is hereby struck out.
ii. The prayer to strike out the suit is hereby declined.
iii. The Plaintiff to file and serve the Verifying Affidavit within the next 7 days.
iv. The Defendants to file their Statement of Defence within next 14 days.
b) The costs to follow the outcome of the suit.
c) That this being a fast track suit, matter be listed for case management conference before Justice Bitta on 28/07/2026.
Dated and delivered virtually at Mombasa this 25th day of June, 2026.
………………………
HON. F. WANGARI
JUDGE OF THE HIGH COURT
In the presence of;
Plaintiff, present in person
Mr. Ng’ang’a Advocate for the Defendants/Applicants
Ms. Salwa, Court Assistant