REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERUGOYA
APPELLATE SIDE
(Coram: Andayi W. F, J.)
CIVIL APPEAL NO. E049 OF 2023
MAZAO NA AFYA LIMITED…………………………APPELLANT
VERSUS
MATERE DESIGN & BUILD LIMITED………………RESPONDENT
RULING
1. This appeal through the memorandum dated 23/6/2023 seeks to set aside the decree of the learned trial magistrate issued on 12/7/2023 arising from a ruling of the trial court dated 24/5/2023. In the ruling the learned trial magistrate struck out the appellant’s defence and granted summary judgment to the respondent herein against the appellant in the sum of KShs 430,000/= together with costs.
2. The respondent had sued the appellant in a plaint dated 5/9/2022 seeking the sum of KShs 430,000/= as fees for professional architectural services provided by the respondent to the appellant and due and owing as at 28/2/2021. The same was said to be arising out of a contract dated 3/10/2020 between the appellant and the respondent. The respondent was to and according to his case, did provide professional architectural services to the appellant whereby it conceptualized, prepared schematic and detailed designs and construction drawings for the appellant which the appellant used to construct a warehouse complex in Mutithi, Kirinyaga County. It was the respondent’s case therefore that it had fulfilled its obligations under the contract but the appellant had failed to pay the sum of KShs 430,000/=.
3. The appellant filed a statement of defence dated 31/10/2022 and denied the claim by the respondent and prayed that the respondent’s claim be dismissed with costs.
4. The respondent then filed a notice of motion application dated 6/2/2023 seeking that the appellant’s defence be struck out and judgment be entered for the respondent against the appellant for the sum of KShs 430,000/= together with interest and costs.
5. The grounds in support of the application and which were expounded in the supporting affidavit sworn on 6/2/2023 by Edwin Matere, a director of the respondent were that the appellant was truly indebted to the respondent in the sum of KShs 430,000/=; the appellant did not have any reasonable defence to the suit; the defence filed did not disclose any reasonable defence against the claim; the defence was a sham and did not disclose any triable issues and was an abuse of the court process.
6. The respondent annexed to its supporting affidavit a copy of the contract, e-mail correspondences between the parties on the contract attaching works executed by the respondent as per the contract and a copy of invoice by the respondent to the appellant.
7. The appellant responded to the application by way of grounds of opposition dated 10/2/2023 and a replying affidavit sworn on 1/3/2023 by Andrew Mbugua Ndung’u a director of the appellant. The grounds of opposition were that the application was incompetent, bad in law and an abuse of the court process and that it lacked merit.
8. In the replying affidavit the appellant deposed that the application was premature as the same was filed before the appellant filed its documents, that the respondent had adduced evidence, contrary to Order 2 Rule 15(2) CPR and that the matter had been filed under a statement of claim instead of a plaint.
9. That the application would call for cross-examination of the deponent of the supporting affidavit which would amount to conducting a full trial through a notice of motion.
10. That the parties had never had any transaction in relation to Mutithi, Kirinyaga County and that the respondent’s exhibits had no reference to Mutithi.
11. That the appellant and the respondent had an agreement dated 15/2/2022 with respect to works on property located at Embu/Wachoro/2695 and the sum due to the respondent for that project was paid in full.
12. After considering the application and the submissions by learned counsels, the learned magistrate in a ruling dated 24/5/2023 found that the application had merit. She consequently struck out the statement of defence and entered judgment as prayed for the respondent.
13. The appellant was dissatisfied with the ruling and has filed the present appeal based on the following grounds, that the learned magistrate erred in law and in fact in:
a. failing to find that the notice of motion dated 6/2/2023 was in violation of Order 2 Rule 15(2) of the Civil Procedure Rules.
b. disregarding the replying affidavit sworn by the appellant on 1/3/2023.
c. failing to evaluate and analyse the submissions filed on behalf of the appellant.
d. striking out the appellant’s statement of defence which raised serious triable issues including points of law.
e. striking out the appellant’s statement of defence before the appellant had filed a witness statement and list of documents and before directions under Order 11 had been given.
f. failing to dispense substantive justice as required under Article 159(2)(2) of the Constitution of Kenya.
14. The appeal was disposed of by way of written submissions.
15. The opening statement of the submissions by the appellant cites the wrong case and decision appealed against as well as the wrong memorandum of appeal. But since citation of the decision appealed against in the heading is correct as well as the contents, nothing much turns on that error.
16. Learned counsel for the appellant submits that since the respondent relied on the ground of failure to disclose a reasonable defence, it was wrong for it to file an affidavit in support of the application as is provided for under Order 2 Rule 15(2) of the CPR which provides that 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. He cited the case of Blue Shield Insurance Company Limited v Joseph Mboya Ogutu [2009] eKLR and Co-operative Bank of Kenya Limited v Karanja Mungai [2016] KEHC 8486 (KLR) to support this submission. In the Blue Shield Insurance case, the well-known case of D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & another [1980] KECA 3 (KLR) was cited where it was stated that:
“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.”
17. Learned counsel submitted further that the respondent having called evidence through the supporting affidavit could then not allege that there was no reasonable defence to the suit and so the matter ought to have gone to full hearing as was held in the case of National Social Security Fund Board of Trustees v Protection Custody Limited [2024] KEHC 2549 (KLR). In this case, learned counsel submits that the trial court considered the merits of the case thereby usurping its reserved powers.
18. Learned counsel submits further that the appellant swore an affidavit and adduced evidence challenging the respondent’s evidence by proving that it was not indebted to the respondent as there was no such contractual relationship existing between the parties. He submits that there were triable issues raised by the defence and that even one single issue for trial is sufficient for the court to decline an application to strike out. He cited the case of Job Kilach v Nation Media Group Ltd, Salaba Agencies Ltd & Michael Rono [2015] KECA 846 (KLR) where on the same issue, it was held that:
“Before the grant of summary judgment, the court must satisfy itself that there are no triable issues raised by the defendant, either in his statement of defence or in the affidavit in opposition to the application for summary judgment or in any other manner.
What then is a defence that raises no bona fide triable issue? A bona fide triable issue is any matter raised by the defendant that would require further interrogation by the court during a full trial. The Black's Law Dictionary defines the term “triable” as, “subject or liable to judicial examination and trial”. It therefore does not need to be an issue that would succeed, but just one that warrants further intervention by the Court.
In Gupta v Continental Builders Ltd [1976-80] 1 KLR 809, the court, dealing with an appeal from an award granted on a motion for summary judgment, and in considering the weight to be granted to the defendant’s defence, Madan JA stated that:
“If a defendant is able to raise a prima facie triable issue he is entitled in law to unconditional leave to defend. On the other hand, if no prima facie triable issue is put forward to the claim of the plaintiff, it is the duty of the Court forthwith to enter summary judgment for it is as much against natural justice to shut out without proper cause a litigant from defending himself as it is to keep a plaintiff out of his dues in a proper case. Prima facie triable issues ought to be allowed to go to trial, just as a sham or bogus defence ought to be rejected peremptorily.”
19. It would therefore have been prudent, learned counsel submits, for the trial court to accord the parties a fair hearing to settle the issues as provided for under Article 50(1) of the Constitution. He submits that in the event this court upholds the trial court’s decision then it shall deny the appellant the right to access to justice and to adduce and to challenge evidence tendered by the respondent which is tantamount to blocking the doors of justice.
20. Learned counsel further submits that it was wrong for the trial court to proceed to strike out the defence before the appellant filed its witness statements and documents in support of its case and before pre-trial directions were issued under Order 11 CPR. He relies on the case of National Social Security Fund above for that proposition.
21. Learned counsel for the respondent submits on his part that considering the provisions of Order 2 Rule 15, the court is not precluded from proceeding to consider an application for striking out a pleading even before compliance with Order 11 CPR. That the power to strike out a pleading as provided is at the discretion of the court. In any case, the appellant had sufficient time to file its witness statements and documents in support of its case but it had not done so by the time the application was filed.
22. On the merits of the application, learned counsel relies on the case of D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & another [1980] KECA 3 (KLR) which has 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 informed 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.”
23. Learned counsel further submitted that the respondent’s suit was for a liquidated demand and the defence by the defendant consisted of mere denials and the same was for striking out. He relied on the case of Raghbir Singh Chatte v National Bank of Kenya Limited [1996] KECA 99 (KLR) to support this submission.
24. 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)”.
25. I have considered the application filed herein, the submissions by learned counsels and the ruling of the learned trial magistrate. The issue for determination in this appeal is whether the learned trial magistrate was right or wrong in the exercise of her discretion in striking out the statement of defence by the appellant and entering judgment for the respondent.
26. 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.
27. The respondent’s application for striking out the defence filed by the appellant was premised on the grounds provided for in Sub-rules (1)(a) that the defence does not disclose any reasonable defence and (1)(d) that the defence is an abuse of the process of the court.
28. The statement of defence by the appellant is reproduced in its entirety below for purposes of clarity:
a. the respondent admits paragraphs 1, 2, and 3 of the plaint, in so far as they are merely descriptive of the parties herein…
b. the respondent denies in toto the contents of paragraphs 4, 5, 6, 7, 8, 9 and 10 of the statement of claim and hereby put the claimant to strict proof hereof.
c. the respondent denies in toto liability to the claimant and hereby puts it to strict proof thereof.
d. the respondent avers that the suit as drafted is incompetent and bad in law and shall raise a preliminary objection to the hearing of the same.
e. save what is herein expressly admitted the respondent denies all the averments in the statement of claim as though they were set out verbatim and traversed seriatim.
29. I am well guided by the authorities cited above on the principles applicable to an application for striking out a pleading and entry of judgment. As I apply the above principles to this case, I am also reminded that the power to strike out a pleading is at the discretion of the court. In the case of Meya Agri Traders Ltd v Elgon House (2010) Ltd [2023] KECA 574 (KLR) the Court of Appeal held that:
“This power is a discretionary power of the trial court. However, as rightly submitted by the appellants, striking out of pleadings is a draconian tool which must only be deployed by courts in the clearest of incidences. In our view, if a pleading raises a triable issue irrespective of whether it will succeed or not, the suit ought to be allowed to proceed to trial. On the contrary, where a pleading is of no substance or ground, mere denial, fanciful and or is of some ulterior motive the court should not shy away from invoking its powers to strike out such a suit. Invoking the power to strike out pleadings must be in adherence to the well laid down principles requiring that it be exercised sparingly and in clear and obvious cases. A pleading may only be struck out if the elements contained in Order 2 Rule 15(1)(a), (b), (c) and (d) of the Civil Procedure Rules are in existence…
… For our intervention to be granted, we must be satisfied either that the lower court misdirected itself in some matter hence arrived at a wrong decision or that it is manifest from the case as a whole that the lower court was clearly wrong in the exercise of its discretion and that as a result there has been miscarriage of justice.”
30. On the submission that the respondent ought not to have filed a supporting affidavit, the same is correct with respect to the first ground of the application that the defence filed does not disclose any reasonable defence against the claim.
31. I have looked at the ruling of the learned trial magistrate and the same does not make any reference to the supporting affidavit meaning that the ruling was not based on the depositions in the affidavit nor on the second ground of the application.
32. Learned counsel for the appellant submits that the respondent ought to have waited for pre-trial procedures to be finalized where the appellant would have filed its witness statements and documents in support of the defence, before filing the application. But the Rule does not make such a requirement. It simply provides that the order of the court to strike out a pleading may be made at any stage of the proceedings. As submitted by learned counsel for the respondent, the appellant had all the time to file the witness statements and supporting documents but it did not do so. The respondent looked at the statement of defence filed and considering its claim, felt that it the appellant had no reasonable defence to it. So that it did not even have to file a reply to defence to the same but filed the application to strike out.
33. I have looked at the statement of defence filed by the appellant and reproduced above it is apparent that it was a general denial of the respondent’s claim. I do not think any other description can be ascribed to it other than that. Coming to the replying affidavit by the appellant, the same was about a completely different contract from what the respondent had claimed, an agreement dated 15/2/2022 with respect to works on property located at Embu/Wachoro/2695. The question is, if indeed there was such a defence to the respondent’s claim, why did the appellant put it forward at once? This was clearly an afterthought only meant to respond to the application but not the claim. It would appear that the parties had engaged in various contracts and the appellant chose one of them when faced with the application to strike out the defence. I say so because, the appellant claimed that the documents provided by the respondent did not make any reference to Mutithi project. That is not correct because the e-mail dated Tue Nov. 10 2020 at 3.16 p.m. makes reference to Mutithi Site Plan while the one dated Wed. 18 Nov. 2020 8.22 am makes reference to Mutithi project.
34. While having the principles of striking out a pleading and entering judgment in mind, and considering the claim by the respondent and the statement of defence by the appellant, I find that the learned trial magistrate was right in the exercise of her discretion and I find no reason to fault her. The defence by the appellant was a bare denial of the suit filed by the respondent. The claim was for a liquidated amount of money KShs 430,000/= arising out of a contract between the parties. The respondent clearly laid down its claim. There was no specific traverse by the appellant of any of the issues raised in the suit by the respondent. I am guided by the case cited by learned counsel for the respondent of Raghbir Singh Chatte v National Bank of Kenya Limited [1996] KECA 99 (KLR) where the case of Magunga General Stores v Pepco Distributors [1987] 2 KAR 89 is cited where Platt JA stated that:
“First of all a mere denial is not a sufficient defence in this type of case there must be some reason why the defendant does not owe the money. Either there was no contract or it was not carried out and failed. It could also be that payment had been made and could be proved. It is not sufficient therefore simply to deny liability without some reason given.”
Thus is Maguga General Stores this court authoritatively enunciated the principle that in an action for a debt or liquidated demand a mere denial or general traverse will not do for all purposes. Applying the same principle a defence in an action of that type that is a mere general traverse cannot be and is not a sufficient defence and also discloses no reasonable defence for the purposes of 06 r 13(1)(a). In 0 6 r 9, it is provided that every allegation made in a plaint which it is not intended to be admitted, shall not be specifically traversed in defence and a general denial shall not be a sufficient denial of them. The following comments on the corresponding English rule namely 0 18 r 13, which appear in the Supreme Court Practice 1993, vol. 1 PART 1 p.323 para 18/13/1, also clear supports and view that in a suit for a liquidated demand where the facts are clearly set out in the plaint as in the present appeal, a general denial is of no use and demonstrates not only a reprehensible lack of candidness in defence but also that the defence discloses no reasonable defence which can be the basis for an application to strike out the defence either under 0 6 r 13(1)(a) or 0.35:
“This rule enforces a cardinal principle of the system of pleadings, that every allegation of fact in a statement of claim or in a counterclaim must be traversed specifically, otherwise it is deemed to be admitted. It thus prescribes how the pleader should answer his opponent’s pleading, by providing that the penalty for not specifically traversing an allegation of fact is that it will be taken to be admitted, whether this was intended or not. The effect of a traverse, if properly pleaded, is that the party who makes the allegation has to prove it; the effect of an allegation which is treated as admitted is that the party who makes it need not prove it.
The main object of this rule and r.14 is to bring the parties by their pleadings to an issue, and indeed to narrow them down to definite issues, and so diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing (per Jessel M. R. in Thorp v Holdworth (1876) 3 Ch. D. 637). This object is secured by requiring that each party in turn should fully admit or clearly deny every material allegation made against him. Thus, in an action for a debt or liquidated demand in money, a mere denial of the debt is wholly inadmissible”.
35. The mere denials by the appellant could not raise any reasonable defence to the claim raised by the respondent. I find that the defence did not raise any triable issues. The respondent need not have waited for the appellant to file his witness statements and documents in support of the case as the same were unnecessary his application being based on a ground that did not require the production of any evidence to support it.
36. The law provides that a defence can be struck out at any stage of the proceedings where it discloses no reasonable defence. In that case, one cannot invoke the constitutional provision that his case was not heard on the merits. The constitution envisages hearing of a case that has merit and where it has no merit the law provides that the same can be summarily dealt with expeditiously without wasting the court’s and parties’ time by way of striking and entering judgment.
37. I am satisfied that the learned trial magistrate exercised her discretion properly in striking out the defence by the appellant as raising no reasonable defence and entering the judgment for the respondent against the appellant. The decision by learned trial magistrate is hereby affirmed.
38. I therefore find the appeal herein to be without merit and dismiss the same with costs to the respondent.
39. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual platform Teams this 16th day of May 2025 in the presence of:
N/A for the appellant
Lionel Odhiambo for the respondent.
Ummu: Court assistant from Kwale Court.
ANDAYI W. FRANCIS
JUDGE
IN THE HIGH COURT OF KENYA AT KERUGOYA
APPELLATE SIDE
(Coram: Andayi W. F, J.)
CIVIL APPEAL NO. E049 OF 2023
MAZAO NA AFYA LIMITED…………………………APPELLANT
VERSUS
MATERE DESIGN & BUILD LIMITED………………RESPONDENT
RULING
1. This appeal through the memorandum dated 23/6/2023 seeks to set aside the decree of the learned trial magistrate issued on 12/7/2023 arising from a ruling of the trial court dated 24/5/2023. In the ruling the learned trial magistrate struck out the appellant’s defence and granted summary judgment to the respondent herein against the appellant in the sum of KShs 430,000/= together with costs.
2. The respondent had sued the appellant in a plaint dated 5/9/2022 seeking the sum of KShs 430,000/= as fees for professional architectural services provided by the respondent to the appellant and due and owing as at 28/2/2021. The same was said to be arising out of a contract dated 3/10/2020 between the appellant and the respondent. The respondent was to and according to his case, did provide professional architectural services to the appellant whereby it conceptualized, prepared schematic and detailed designs and construction drawings for the appellant which the appellant used to construct a warehouse complex in Mutithi, Kirinyaga County. It was the respondent’s case therefore that it had fulfilled its obligations under the contract but the appellant had failed to pay the sum of KShs 430,000/=.
3. The appellant filed a statement of defence dated 31/10/2022 and denied the claim by the respondent and prayed that the respondent’s claim be dismissed with costs.
4. The respondent then filed a notice of motion application dated 6/2/2023 seeking that the appellant’s defence be struck out and judgment be entered for the respondent against the appellant for the sum of KShs 430,000/= together with interest and costs.
5. The grounds in support of the application and which were expounded in the supporting affidavit sworn on 6/2/2023 by Edwin Matere, a director of the respondent were that the appellant was truly indebted to the respondent in the sum of KShs 430,000/=; the appellant did not have any reasonable defence to the suit; the defence filed did not disclose any reasonable defence against the claim; the defence was a sham and did not disclose any triable issues and was an abuse of the court process.
6. The respondent annexed to its supporting affidavit a copy of the contract, e-mail correspondences between the parties on the contract attaching works executed by the respondent as per the contract and a copy of invoice by the respondent to the appellant.
7. The appellant responded to the application by way of grounds of opposition dated 10/2/2023 and a replying affidavit sworn on 1/3/2023 by Andrew Mbugua Ndung’u a director of the appellant. The grounds of opposition were that the application was incompetent, bad in law and an abuse of the court process and that it lacked merit.
8. In the replying affidavit the appellant deposed that the application was premature as the same was filed before the appellant filed its documents, that the respondent had adduced evidence, contrary to Order 2 Rule 15(2) CPR and that the matter had been filed under a statement of claim instead of a plaint.
9. That the application would call for cross-examination of the deponent of the supporting affidavit which would amount to conducting a full trial through a notice of motion.
10. That the parties had never had any transaction in relation to Mutithi, Kirinyaga County and that the respondent’s exhibits had no reference to Mutithi.
11. That the appellant and the respondent had an agreement dated 15/2/2022 with respect to works on property located at Embu/Wachoro/2695 and the sum due to the respondent for that project was paid in full.
12. After considering the application and the submissions by learned counsels, the learned magistrate in a ruling dated 24/5/2023 found that the application had merit. She consequently struck out the statement of defence and entered judgment as prayed for the respondent.
13. The appellant was dissatisfied with the ruling and has filed the present appeal based on the following grounds, that the learned magistrate erred in law and in fact in:
a. failing to find that the notice of motion dated 6/2/2023 was in violation of Order 2 Rule 15(2) of the Civil Procedure Rules.
b. disregarding the replying affidavit sworn by the appellant on 1/3/2023.
c. failing to evaluate and analyse the submissions filed on behalf of the appellant.
d. striking out the appellant’s statement of defence which raised serious triable issues including points of law.
e. striking out the appellant’s statement of defence before the appellant had filed a witness statement and list of documents and before directions under Order 11 had been given.
f. failing to dispense substantive justice as required under Article 159(2)(2) of the Constitution of Kenya.
14. The appeal was disposed of by way of written submissions.
15. The opening statement of the submissions by the appellant cites the wrong case and decision appealed against as well as the wrong memorandum of appeal. But since citation of the decision appealed against in the heading is correct as well as the contents, nothing much turns on that error.
16. Learned counsel for the appellant submits that since the respondent relied on the ground of failure to disclose a reasonable defence, it was wrong for it to file an affidavit in support of the application as is provided for under Order 2 Rule 15(2) of the CPR which provides that 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. He cited the case of Blue Shield Insurance Company Limited v Joseph Mboya Ogutu [2009] eKLR and Co-operative Bank of Kenya Limited v Karanja Mungai [2016] KEHC 8486 (KLR) to support this submission. In the Blue Shield Insurance case, the well-known case of D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & another [1980] KECA 3 (KLR) was cited where it was stated that:
“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.”
17. Learned counsel submitted further that the respondent having called evidence through the supporting affidavit could then not allege that there was no reasonable defence to the suit and so the matter ought to have gone to full hearing as was held in the case of National Social Security Fund Board of Trustees v Protection Custody Limited [2024] KEHC 2549 (KLR). In this case, learned counsel submits that the trial court considered the merits of the case thereby usurping its reserved powers.
18. Learned counsel submits further that the appellant swore an affidavit and adduced evidence challenging the respondent’s evidence by proving that it was not indebted to the respondent as there was no such contractual relationship existing between the parties. He submits that there were triable issues raised by the defence and that even one single issue for trial is sufficient for the court to decline an application to strike out. He cited the case of Job Kilach v Nation Media Group Ltd, Salaba Agencies Ltd & Michael Rono [2015] KECA 846 (KLR) where on the same issue, it was held that:
“Before the grant of summary judgment, the court must satisfy itself that there are no triable issues raised by the defendant, either in his statement of defence or in the affidavit in opposition to the application for summary judgment or in any other manner.
What then is a defence that raises no bona fide triable issue? A bona fide triable issue is any matter raised by the defendant that would require further interrogation by the court during a full trial. The Black's Law Dictionary defines the term “triable” as, “subject or liable to judicial examination and trial”. It therefore does not need to be an issue that would succeed, but just one that warrants further intervention by the Court.
In Gupta v Continental Builders Ltd [1976-80] 1 KLR 809, the court, dealing with an appeal from an award granted on a motion for summary judgment, and in considering the weight to be granted to the defendant’s defence, Madan JA stated that:
“If a defendant is able to raise a prima facie triable issue he is entitled in law to unconditional leave to defend. On the other hand, if no prima facie triable issue is put forward to the claim of the plaintiff, it is the duty of the Court forthwith to enter summary judgment for it is as much against natural justice to shut out without proper cause a litigant from defending himself as it is to keep a plaintiff out of his dues in a proper case. Prima facie triable issues ought to be allowed to go to trial, just as a sham or bogus defence ought to be rejected peremptorily.”
19. It would therefore have been prudent, learned counsel submits, for the trial court to accord the parties a fair hearing to settle the issues as provided for under Article 50(1) of the Constitution. He submits that in the event this court upholds the trial court’s decision then it shall deny the appellant the right to access to justice and to adduce and to challenge evidence tendered by the respondent which is tantamount to blocking the doors of justice.
20. Learned counsel further submits that it was wrong for the trial court to proceed to strike out the defence before the appellant filed its witness statements and documents in support of its case and before pre-trial directions were issued under Order 11 CPR. He relies on the case of National Social Security Fund above for that proposition.
21. Learned counsel for the respondent submits on his part that considering the provisions of Order 2 Rule 15, the court is not precluded from proceeding to consider an application for striking out a pleading even before compliance with Order 11 CPR. That the power to strike out a pleading as provided is at the discretion of the court. In any case, the appellant had sufficient time to file its witness statements and documents in support of its case but it had not done so by the time the application was filed.
22. On the merits of the application, learned counsel relies on the case of D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & another [1980] KECA 3 (KLR) which has 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 informed 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.”
23. Learned counsel further submitted that the respondent’s suit was for a liquidated demand and the defence by the defendant consisted of mere denials and the same was for striking out. He relied on the case of Raghbir Singh Chatte v National Bank of Kenya Limited [1996] KECA 99 (KLR) to support this submission.
24. 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)”.
25. I have considered the application filed herein, the submissions by learned counsels and the ruling of the learned trial magistrate. The issue for determination in this appeal is whether the learned trial magistrate was right or wrong in the exercise of her discretion in striking out the statement of defence by the appellant and entering judgment for the respondent.
26. 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.
27. The respondent’s application for striking out the defence filed by the appellant was premised on the grounds provided for in Sub-rules (1)(a) that the defence does not disclose any reasonable defence and (1)(d) that the defence is an abuse of the process of the court.
28. The statement of defence by the appellant is reproduced in its entirety below for purposes of clarity:
a. the respondent admits paragraphs 1, 2, and 3 of the plaint, in so far as they are merely descriptive of the parties herein…
b. the respondent denies in toto the contents of paragraphs 4, 5, 6, 7, 8, 9 and 10 of the statement of claim and hereby put the claimant to strict proof hereof.
c. the respondent denies in toto liability to the claimant and hereby puts it to strict proof thereof.
d. the respondent avers that the suit as drafted is incompetent and bad in law and shall raise a preliminary objection to the hearing of the same.
e. save what is herein expressly admitted the respondent denies all the averments in the statement of claim as though they were set out verbatim and traversed seriatim.
29. I am well guided by the authorities cited above on the principles applicable to an application for striking out a pleading and entry of judgment. As I apply the above principles to this case, I am also reminded that the power to strike out a pleading is at the discretion of the court. In the case of Meya Agri Traders Ltd v Elgon House (2010) Ltd [2023] KECA 574 (KLR) the Court of Appeal held that:
“This power is a discretionary power of the trial court. However, as rightly submitted by the appellants, striking out of pleadings is a draconian tool which must only be deployed by courts in the clearest of incidences. In our view, if a pleading raises a triable issue irrespective of whether it will succeed or not, the suit ought to be allowed to proceed to trial. On the contrary, where a pleading is of no substance or ground, mere denial, fanciful and or is of some ulterior motive the court should not shy away from invoking its powers to strike out such a suit. Invoking the power to strike out pleadings must be in adherence to the well laid down principles requiring that it be exercised sparingly and in clear and obvious cases. A pleading may only be struck out if the elements contained in Order 2 Rule 15(1)(a), (b), (c) and (d) of the Civil Procedure Rules are in existence…
… For our intervention to be granted, we must be satisfied either that the lower court misdirected itself in some matter hence arrived at a wrong decision or that it is manifest from the case as a whole that the lower court was clearly wrong in the exercise of its discretion and that as a result there has been miscarriage of justice.”
30. On the submission that the respondent ought not to have filed a supporting affidavit, the same is correct with respect to the first ground of the application that the defence filed does not disclose any reasonable defence against the claim.
31. I have looked at the ruling of the learned trial magistrate and the same does not make any reference to the supporting affidavit meaning that the ruling was not based on the depositions in the affidavit nor on the second ground of the application.
32. Learned counsel for the appellant submits that the respondent ought to have waited for pre-trial procedures to be finalized where the appellant would have filed its witness statements and documents in support of the defence, before filing the application. But the Rule does not make such a requirement. It simply provides that the order of the court to strike out a pleading may be made at any stage of the proceedings. As submitted by learned counsel for the respondent, the appellant had all the time to file the witness statements and supporting documents but it did not do so. The respondent looked at the statement of defence filed and considering its claim, felt that it the appellant had no reasonable defence to it. So that it did not even have to file a reply to defence to the same but filed the application to strike out.
33. I have looked at the statement of defence filed by the appellant and reproduced above it is apparent that it was a general denial of the respondent’s claim. I do not think any other description can be ascribed to it other than that. Coming to the replying affidavit by the appellant, the same was about a completely different contract from what the respondent had claimed, an agreement dated 15/2/2022 with respect to works on property located at Embu/Wachoro/2695. The question is, if indeed there was such a defence to the respondent’s claim, why did the appellant put it forward at once? This was clearly an afterthought only meant to respond to the application but not the claim. It would appear that the parties had engaged in various contracts and the appellant chose one of them when faced with the application to strike out the defence. I say so because, the appellant claimed that the documents provided by the respondent did not make any reference to Mutithi project. That is not correct because the e-mail dated Tue Nov. 10 2020 at 3.16 p.m. makes reference to Mutithi Site Plan while the one dated Wed. 18 Nov. 2020 8.22 am makes reference to Mutithi project.
34. While having the principles of striking out a pleading and entering judgment in mind, and considering the claim by the respondent and the statement of defence by the appellant, I find that the learned trial magistrate was right in the exercise of her discretion and I find no reason to fault her. The defence by the appellant was a bare denial of the suit filed by the respondent. The claim was for a liquidated amount of money KShs 430,000/= arising out of a contract between the parties. The respondent clearly laid down its claim. There was no specific traverse by the appellant of any of the issues raised in the suit by the respondent. I am guided by the case cited by learned counsel for the respondent of Raghbir Singh Chatte v National Bank of Kenya Limited [1996] KECA 99 (KLR) where the case of Magunga General Stores v Pepco Distributors [1987] 2 KAR 89 is cited where Platt JA stated that:
“First of all a mere denial is not a sufficient defence in this type of case there must be some reason why the defendant does not owe the money. Either there was no contract or it was not carried out and failed. It could also be that payment had been made and could be proved. It is not sufficient therefore simply to deny liability without some reason given.”
Thus is Maguga General Stores this court authoritatively enunciated the principle that in an action for a debt or liquidated demand a mere denial or general traverse will not do for all purposes. Applying the same principle a defence in an action of that type that is a mere general traverse cannot be and is not a sufficient defence and also discloses no reasonable defence for the purposes of 06 r 13(1)(a). In 0 6 r 9, it is provided that every allegation made in a plaint which it is not intended to be admitted, shall not be specifically traversed in defence and a general denial shall not be a sufficient denial of them. The following comments on the corresponding English rule namely 0 18 r 13, which appear in the Supreme Court Practice 1993, vol. 1 PART 1 p.323 para 18/13/1, also clear supports and view that in a suit for a liquidated demand where the facts are clearly set out in the plaint as in the present appeal, a general denial is of no use and demonstrates not only a reprehensible lack of candidness in defence but also that the defence discloses no reasonable defence which can be the basis for an application to strike out the defence either under 0 6 r 13(1)(a) or 0.35:
“This rule enforces a cardinal principle of the system of pleadings, that every allegation of fact in a statement of claim or in a counterclaim must be traversed specifically, otherwise it is deemed to be admitted. It thus prescribes how the pleader should answer his opponent’s pleading, by providing that the penalty for not specifically traversing an allegation of fact is that it will be taken to be admitted, whether this was intended or not. The effect of a traverse, if properly pleaded, is that the party who makes the allegation has to prove it; the effect of an allegation which is treated as admitted is that the party who makes it need not prove it.
The main object of this rule and r.14 is to bring the parties by their pleadings to an issue, and indeed to narrow them down to definite issues, and so diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing (per Jessel M. R. in Thorp v Holdworth (1876) 3 Ch. D. 637). This object is secured by requiring that each party in turn should fully admit or clearly deny every material allegation made against him. Thus, in an action for a debt or liquidated demand in money, a mere denial of the debt is wholly inadmissible”.
35. The mere denials by the appellant could not raise any reasonable defence to the claim raised by the respondent. I find that the defence did not raise any triable issues. The respondent need not have waited for the appellant to file his witness statements and documents in support of the case as the same were unnecessary his application being based on a ground that did not require the production of any evidence to support it.
36. The law provides that a defence can be struck out at any stage of the proceedings where it discloses no reasonable defence. In that case, one cannot invoke the constitutional provision that his case was not heard on the merits. The constitution envisages hearing of a case that has merit and where it has no merit the law provides that the same can be summarily dealt with expeditiously without wasting the court’s and parties’ time by way of striking and entering judgment.
37. I am satisfied that the learned trial magistrate exercised her discretion properly in striking out the defence by the appellant as raising no reasonable defence and entering the judgment for the respondent against the appellant. The decision by learned trial magistrate is hereby affirmed.
38. I therefore find the appeal herein to be without merit and dismiss the same with costs to the respondent.
39. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual platform Teams this 16th day of May 2025 in the presence of:
N/A for the appellant
Lionel Odhiambo for the respondent.
Ummu: Court assistant from Kwale Court.
ANDAYI W. FRANCIS
JUDGE