' Background and Introduction
1. By an application dated 29th November 2023, the plaintiff prays for the striking out of the defendant’s Statement of Defence and Counterclaim, dated 22nd January 2025. The plaintiff further seeks the entry of judgment in their favour and an order granting liberty to dispose of the property known as Plot No. 1/198 Lenana Road, for the purpose of satisfying the outstanding debt owed by the defendant. The application is opposed through the replying affidavit of DIVYANG KEVAI sworn on 4th June 2025. Both parties have filed written submissions which I have carefully considered.
Analysis and Determination
2. The application is brought under Order 2 Rule 15(2) of the Civil Procedure Rules 2010 which provides as follows:
“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
3. I am fully cognizant of the well-established principle that the power to strike out pleadings is a drastic remedy which must be exercised with great caution and only in the clearest of cases. This position was aptly articulated in the landmark decision of DT Dobie & Company (Kenya) Ltd v. Muchina [1982] KLR 1, where the Court emphasized that striking out should be a measure of last resort, to be employed sparingly and only where the impugned pleading is so hopeless that it plainly discloses no reasonable cause of action or defence.
4. Nonetheless, it is equally settled that where a pleading is manifestly frivolous, vexatious, or constitutes an abuse of the court process, and where it fails to disclose any reasonable cause of action or defence in law, the court not only has the discretion but indeed bears a solemn duty to invoke its inherent jurisdiction. This ensures that judicial time and resources are not squandered on proceedings that are devoid of merit and that the administration of justice is not undermined by the perpetuation of baseless litigation.
5. The plaintiffs have drawn the Court’s attention to its earlier ruling delivered on 6th December 2024, a decision which both parties acknowledge as common ground. Upon careful review of the said ruling, I note that the Court pronounced itself in considerable detail between paragraphs 17 and 22 as follows:
17. In this case, the letter dated 18th July 2018, marked as Annexure MM1, serves as the basis for the agreement between the parties. The letter, drafted by Merit Development Limited and addressed to the plaintiff, specifies that the legal fees for the three lawsuits would amount to Kshs. 60 million. It is signed by both Mr. K. V. Mavji, the director of the instructing client and the advocate and it clearly outlines the sources of funds to pay the legal fees.
18. It is evident that these are the terms the parties agreed to, as demonstrated by the execution of the said agreement. Notably, the agreement is drafted on the defendant’s letterhead, meaning it originated from the defendant and not the plaintiff. The defendant''s argument that the letter was not properly executed according to the defendant’s memorandum and articles of association lacks merit in light of the Turquand’s rule, as established in Royal British Bank V Turquand, [1856] 6 E&B
19. This principle holds that a company or corporation cannot escape liability due to its officers’ noncompliance with internal management regulations or statutory provisions.
20. This rule is echoed in Sections 33 and 34 of the Kenya Companies Act, which provide as follows: Section 33: “The validity of an act or omission of a company may not be called into question on the ground of lack of capacity because of a provision in the constitution of the company.” Section 34(1): “In favour of a person dealing with a company in good faith, the power of the directors to bind the company, or authorise others to do so, is free of any limitation contained in the company’s constitution.”
21. It is further a settled principle of contract law that parties to a contract are bound by the terms they have negotiated. Courts cannot rewrite contracts for the parties. In National Bank of Kenya Ltd V Pipeplastic Samkolit (K) Ltd & Another, [2001] eKLR, the Court of Appeal held: “A court of law cannot rewrite a contract between the parties. The parties are bound by the terms of their contract, unless coercion, fraud, or undue influence are pleaded and proved.”
22. Given the clear terms outlined in the letter and the signatures of both parties, it is evident that a valid and binding agreement was formed. Consequently, the plaintiff’s claim for payment of legal fees from the proceeds of the sale of the suit property, or from other sources as mutually agreed, is legally enforceable. The defendant’s argument that the agreement was made unilaterally is unsupported, as it is evident that both parties executed the agreement.
23. There is no dispute that the plaintiff represented the defendant in various matters. The plaintiff’s legal fees remain unpaid, prompting the plaintiff, through a letter dated 29th March 2024, to formally demand payment…
6. In the absence of any indication that the Ruling of 6th December 2024 has been appealed, reviewed, or otherwise set aside, it stands as a final and binding determination on the issues therein. Accordingly, the Court is duty-bound to treat the pronouncement as authoritative and operative.
7. Upon a thorough and deliberate examination of the defendant’s Statement of Defence and Counterclaim, I find merit in the plaintiff’s contention that the issues raised therein are, in substance, a reiteration of matters that were fully canvassed and conclusively determined in the Court’s Ruling of 6th December 2024. The pleadings filed by the defendant do not disclose any new or material facts, nor do they raise any fresh legal arguments that would justify a departure from the Court’s earlier findings. In these circumstances, the doctrine of res judicata squarely applies. Accordingly, this Court is precluded from reopening or revisiting matters that have already been conclusively resolved.
8. The defendants’ reliance on consumer protection concerns, in isolation, does not provide sufficient grounds to warrant a reopening of this matter. This Court has already issued a determination on the issue of the defendants’ failure to challenge the underlying agreement in accordance with the procedural safeguards set out under Section 42 of the Advocates Act.
9. Under that provision, the defendants were afforded two statutory windows within which to contest the validity or terms of the agreement: first, a period of one year from the date of engagement with the advocate, and second, a three-month period following the issuance of a demand for payment. The defendants did not take any steps to invoke them until the commencement of the present suit. Their inaction renders their objections untenable and legally unsustainable. In light of the history of this matter, I am persuaded that the argument now advanced by the defendants is not only belated but appears to be an afterthought considering that this Court has already upheld the validity of the agreement.
10. Even assuming, for argument’s sake, that this Court were to entertain the present application and ultimately dismiss it, such an exercise would be purely academic and bereft of any substantive utility. It would amount to a procedural formality that does not alter the legal landscape already defined by this Court’s prior ruling. Engaging in such a process would merely consume judicial time and resources without yielding any meaningful outcome. In view of the settled position of the law and the absence of any compelling grounds to revisit the matter, I find no justification for reopening the issues previously adjudicated.
Disposition
11. Accordingly, the application dated 29th November 2023 is allowed and the following orders hereby issue;
i. The defendant/respondent’s Statement of Defence and Counterclaim dated 22nd January 2025 be and is hereby struck out. Judgment is hereby entered in favour of the plaintiff/applicant as against the defendant/respondent for the sum of Kenya Shillings Sixty Million (KES 60,000,000.00) plus interest be applied on the said judgment award at commercial bank rates of 14% from 18th January 2019 until settlement in full.
ii. In the event of failure by the defendant/respondent to pay the plaintiff/applicant the sum of KES 60,000,000.00 together with accrued interest within 30 days of the date of judgment, the plaintiff/applicant be at liberty to sell all that parcel of land otherwise known as Plot No. 1/198 Lenana Road to recover the said debt.
iii. The Deputy Registrar shall execute all the requisite transfer instruments on behalf of the defendant/respondent to give effect to order (ii) above.
iv. The plaintiff/applicant shall have the costs of the application.
'
1. By an application dated 29th November 2023, the plaintiff prays for the striking out of the defendant’s Statement of Defence and Counterclaim, dated 22nd January 2025. The plaintiff further seeks the entry of judgment in their favour and an order granting liberty to dispose of the property known as Plot No. 1/198 Lenana Road, for the purpose of satisfying the outstanding debt owed by the defendant. The application is opposed through the replying affidavit of DIVYANG KEVAI sworn on 4th June 2025. Both parties have filed written submissions which I have carefully considered.
Analysis and Determination
2. The application is brought under Order 2 Rule 15(2) of the Civil Procedure Rules 2010 which provides as follows:
“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
3. I am fully cognizant of the well-established principle that the power to strike out pleadings is a drastic remedy which must be exercised with great caution and only in the clearest of cases. This position was aptly articulated in the landmark decision of DT Dobie & Company (Kenya) Ltd v. Muchina [1982] KLR 1, where the Court emphasized that striking out should be a measure of last resort, to be employed sparingly and only where the impugned pleading is so hopeless that it plainly discloses no reasonable cause of action or defence.
4. Nonetheless, it is equally settled that where a pleading is manifestly frivolous, vexatious, or constitutes an abuse of the court process, and where it fails to disclose any reasonable cause of action or defence in law, the court not only has the discretion but indeed bears a solemn duty to invoke its inherent jurisdiction. This ensures that judicial time and resources are not squandered on proceedings that are devoid of merit and that the administration of justice is not undermined by the perpetuation of baseless litigation.
5. The plaintiffs have drawn the Court’s attention to its earlier ruling delivered on 6th December 2024, a decision which both parties acknowledge as common ground. Upon careful review of the said ruling, I note that the Court pronounced itself in considerable detail between paragraphs 17 and 22 as follows:
17. In this case, the letter dated 18th July 2018, marked as Annexure MM1, serves as the basis for the agreement between the parties. The letter, drafted by Merit Development Limited and addressed to the plaintiff, specifies that the legal fees for the three lawsuits would amount to Kshs. 60 million. It is signed by both Mr. K. V. Mavji, the director of the instructing client and the advocate and it clearly outlines the sources of funds to pay the legal fees.
18. It is evident that these are the terms the parties agreed to, as demonstrated by the execution of the said agreement. Notably, the agreement is drafted on the defendant’s letterhead, meaning it originated from the defendant and not the plaintiff. The defendant''s argument that the letter was not properly executed according to the defendant’s memorandum and articles of association lacks merit in light of the Turquand’s rule, as established in Royal British Bank V Turquand, [1856] 6 E&B
19. This principle holds that a company or corporation cannot escape liability due to its officers’ noncompliance with internal management regulations or statutory provisions.
20. This rule is echoed in Sections 33 and 34 of the Kenya Companies Act, which provide as follows: Section 33: “The validity of an act or omission of a company may not be called into question on the ground of lack of capacity because of a provision in the constitution of the company.” Section 34(1): “In favour of a person dealing with a company in good faith, the power of the directors to bind the company, or authorise others to do so, is free of any limitation contained in the company’s constitution.”
21. It is further a settled principle of contract law that parties to a contract are bound by the terms they have negotiated. Courts cannot rewrite contracts for the parties. In National Bank of Kenya Ltd V Pipeplastic Samkolit (K) Ltd & Another, [2001] eKLR, the Court of Appeal held: “A court of law cannot rewrite a contract between the parties. The parties are bound by the terms of their contract, unless coercion, fraud, or undue influence are pleaded and proved.”
22. Given the clear terms outlined in the letter and the signatures of both parties, it is evident that a valid and binding agreement was formed. Consequently, the plaintiff’s claim for payment of legal fees from the proceeds of the sale of the suit property, or from other sources as mutually agreed, is legally enforceable. The defendant’s argument that the agreement was made unilaterally is unsupported, as it is evident that both parties executed the agreement.
23. There is no dispute that the plaintiff represented the defendant in various matters. The plaintiff’s legal fees remain unpaid, prompting the plaintiff, through a letter dated 29th March 2024, to formally demand payment…
6. In the absence of any indication that the Ruling of 6th December 2024 has been appealed, reviewed, or otherwise set aside, it stands as a final and binding determination on the issues therein. Accordingly, the Court is duty-bound to treat the pronouncement as authoritative and operative.
7. Upon a thorough and deliberate examination of the defendant’s Statement of Defence and Counterclaim, I find merit in the plaintiff’s contention that the issues raised therein are, in substance, a reiteration of matters that were fully canvassed and conclusively determined in the Court’s Ruling of 6th December 2024. The pleadings filed by the defendant do not disclose any new or material facts, nor do they raise any fresh legal arguments that would justify a departure from the Court’s earlier findings. In these circumstances, the doctrine of res judicata squarely applies. Accordingly, this Court is precluded from reopening or revisiting matters that have already been conclusively resolved.
8. The defendants’ reliance on consumer protection concerns, in isolation, does not provide sufficient grounds to warrant a reopening of this matter. This Court has already issued a determination on the issue of the defendants’ failure to challenge the underlying agreement in accordance with the procedural safeguards set out under Section 42 of the Advocates Act.
9. Under that provision, the defendants were afforded two statutory windows within which to contest the validity or terms of the agreement: first, a period of one year from the date of engagement with the advocate, and second, a three-month period following the issuance of a demand for payment. The defendants did not take any steps to invoke them until the commencement of the present suit. Their inaction renders their objections untenable and legally unsustainable. In light of the history of this matter, I am persuaded that the argument now advanced by the defendants is not only belated but appears to be an afterthought considering that this Court has already upheld the validity of the agreement.
10. Even assuming, for argument’s sake, that this Court were to entertain the present application and ultimately dismiss it, such an exercise would be purely academic and bereft of any substantive utility. It would amount to a procedural formality that does not alter the legal landscape already defined by this Court’s prior ruling. Engaging in such a process would merely consume judicial time and resources without yielding any meaningful outcome. In view of the settled position of the law and the absence of any compelling grounds to revisit the matter, I find no justification for reopening the issues previously adjudicated.
Disposition
11. Accordingly, the application dated 29th November 2023 is allowed and the following orders hereby issue;
i. The defendant/respondent’s Statement of Defence and Counterclaim dated 22nd January 2025 be and is hereby struck out. Judgment is hereby entered in favour of the plaintiff/applicant as against the defendant/respondent for the sum of Kenya Shillings Sixty Million (KES 60,000,000.00) plus interest be applied on the said judgment award at commercial bank rates of 14% from 18th January 2019 until settlement in full.
ii. In the event of failure by the defendant/respondent to pay the plaintiff/applicant the sum of KES 60,000,000.00 together with accrued interest within 30 days of the date of judgment, the plaintiff/applicant be at liberty to sell all that parcel of land otherwise known as Plot No. 1/198 Lenana Road to recover the said debt.
iii. The Deputy Registrar shall execute all the requisite transfer instruments on behalf of the defendant/respondent to give effect to order (ii) above.
iv. The plaintiff/applicant shall have the costs of the application.
'