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Court of AppealDismissedCivil Appeal (number not stated in judgment)

DT Dobie & Company (Kenya) Ltd v Muchina & another (Civil Appeal 37 of 1978) [1980] KECA 3 (KLR)

Court of Appeal of Kenya
18 March 1980
CMC.B. MadanKPK.D. PotterCMC.H.E. Miller
5,208 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~21 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that a lawsuit can only be thrown out at the start if it is completely hopeless, so weak claims get their day in court.

What this practically means

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Executive summary

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This was an interlocutory appeal to the Court of Appeal at Nairobi by the second defendant, D.T. Dobie & Co (K) Ltd, against a ruling of Todd J dismissing its applications under Order VI rule 13 of the Civil Procedure Rules to strike out the plaintiff's claim for damages for wrongful seizure and detention of a Mercedes car, registration KPK 987. The plaintiff's vehicle, taken to the appellant's premises for repairs, was collected from CID Headquarters by the appellant's employee Mbango and never returned; a third party had obtained a conditional attachment order over the car in a separate suit based on information supplied by Mbango. The appellant argued that the plaint disclosed no reasonable cause of action and was an abuse of process, being a suit against a party for obeying a valid court order. Madan JA, delivering the leading judgment with which Potter and Miller JJA agreed, restated the principles governing striking out: the power is discretionary, to be exercised with extreme caution in plain and obvious cases, on the pleadings alone for subrule (1)(a), and a suit should be dismissed only if it is so hopeless as to disclose no reasonable cause of action and to be incurable by amendment. He held the appellant's application incompetent as drafted (it omitted 'reasonable' and lacked concise grounds) and held the suit founded on the initial wrongful seizure and detention constituting conversion, not on disobedience of the attachment order. Potter JA, in a separate concurring judgment, held that vicarious liability was adequately pleaded without the words 'in the course of his employment' and that the abuse-of-process argument was not plain beyond peradventure. The appeal was dismissed with costs, with the amendment substituting 'seizure' for 'attachment' allowed. The decision affirms Todd J's ruling and establishes the classic Kenyan test for striking out pleadings.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the plaint disclosed no reasonable cause of action against the second defendant under Order VI rule 13(1)(a)
  2. 2.Whether the suit was otherwise an abuse of the process of the court under Order VI rule 13(1)(d), being a suit against a party for obeying a valid order of the High Court
  3. 3.Whether the second defendant's application was competent as drafted
  4. 4.Whether the plaintiff could amend paragraph 16(B)(a) of the plaint by substituting 'seizure' for 'attachment'
  5. 5.Whether it was necessary to plead that Mbango was acting 'in the course of his employment' to found vicarious liability

Key legal issues

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01

The test for striking out a pleading under Order VI rule 13(1)(a) for failure to disclose a reasonable cause of action

Holding

A pleading will not be struck out unless it is plain and obvious, demurrable or worse; the court considers all averments and prayers, acts cautiously, and will sustain a suit showing even a semblance of a cause of action curable by amendment.

Reasoning

Drawing on Drummond-Jackson, Peruvian Guano, Moore v Lawson, Nagle v Fielden and other English authorities, Madan JA held that 'reasonable cause of action' means a cause with some chance of success judged only on the pleadings. No evidence is admissible under subrule (1)(a). The summary power should not be used to conduct a trial on affidavits; only hopeless, incurable suits should be dismissed.

p. 6
02

Competence of the second defendant's chamber summons application

Holding

The application was incompetent because it invoked 'no cause of action' rather than 'no reasonable cause of action', and did not state concisely the grounds required by subrule (2).

Reasoning

The rule permits striking out only where a pleading discloses no REASONABLE cause of action. The appellant's application omitted the word 'reasonable' and, beyond a bald statement, set out no grounds, contrary to subrule (2). Todd J was therefore right to dismiss it.

p. 6
03

Whether a suit against a party for obeying a valid court order is an abuse of process

Holding

On the pleadings the suit was founded on the initial wrongful seizure and detention of the vehicle, not on disobedience of the attachment order, so it was not an abuse of process; the appellant could justify refusal to release only if the vehicle was in its possession when the order was served.

Reasoning

Paragraphs 10 and 12 of the plaint alleged Mbango collected the vehicle from CID Headquarters and that the second defendant wrongfully possessed and detained it. If the vehicle was never in the second defendant's possession the attachment order did not affect it. The cause of action began with the initial wrongful seizure, an act of conversion, and the plaintiff could not be denied the right to pursue it.

p. 7
04

Pleading vicarious liability and the course of employment

Holding

Order VI rule 3 requires only a summary of material facts; it is sufficient to plead facts showing employment without the words 'in the course of his employment', and paragraphs 10 and 12 reasonably construed alleged that Mbango took possession in the course of his employment.

Reasoning

Potter JA noted Gohil and related East African authority, and Bullen and Leake precedents, but found it unnecessary to decide their full effect. A pleading need not use specific formulaic words; the onus then shifts to the defence to disprove employment. The employee Mbango not being joined reinforced the construction that he acted in the course of employment.

p. 9
05

Amendment substituting 'seizure' for 'attachment' in paragraph 16(B)(a)

Holding

The amendment was allowed; 'attachment' was an inadvertent clerical error causing no prejudice, since neither the appellant nor its agents had authority to levy attachment under the conditional order.

Reasoning

Both Madan and Potter JJA allowed the amendment. The second defendant had no authority or power to attach under the conditional order, so no prejudice or embarrassment would result from correcting 'wrongful attachment' to 'wrongful seizure'.

p. 3

Legal principles established

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  • A suit should only be summarily dismissed under Order VI rule 13 where it is so hopeless that it plainly and obviously discloses no reasonable cause of action and is incurable by amendment; even a semblance of a cause of action capable of being cured by amendment should go to trial.
  • The jurisdiction to strike out pleadings is discretionary, not mandatory, and must be exercised with extreme caution in plain and obvious cases, without embarking on a trial of the facts or expressing opinions on the merits.
  • An application under Order VI rule 13(1)(a) is decided on the pleadings alone; no affidavit evidence is admissible, and recourse to evidence outside the plaint is not permissible.
  • An application under Order VI rule 13(1)(a) must state concisely the grounds upon which it is made, and must invoke the statutory ground of 'no reasonable cause of action', not merely 'no cause of action'.
  • Conversion and detention consist of a dealing with a chattel in a manner inconsistent with the owner's rights coupled with an intention to deny the owner's right.
  • It is sufficient to plead the facts showing employment without using the specific words 'in the course of his employment'; the pleading need only contain a summary of the material facts.

Court orders

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  1. 1.Appeal dismissed with costs
  2. 2.Amendment to paragraph 16(B)(a) of the plaint allowed, substituting 'seizure' for 'attachment'
  3. 3.Plaintiff at liberty to apply to amend the plaint as indicated in the learned judge's ruling

The bench

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One judgment of the whole court — no separate or dissenting opinions.

CM
majority

Wrote the judgment

Madan JA delivered the leading judgment setting out the principles governing striking out pleadings under Order VI rule 13, held the second defendant's applications incompetent and held the plaintiff's suit disclosed a reasonable cause of action and was not an abuse of process; he would dismiss the appeal with costs.

I would sum up. It is relevant to consider all averments and prayers when assessing under Order 6 rule 13 whether a pleading discloses a reasonable cause of actionp. 5
KP
concurring

Wrote the judgment

Potter JA delivered a separate concurring judgment. He held that no averment showed the attachment order was served on or brought to the appellant's attention so as to compel obedience, that pleading employment without the words 'in the course of his employment' could suffice, and that the rule 13(1)(a) application must fail; the abuse-of-process application also failed. He too would dismiss the appeal with costs and allow the amendment substituting 'seizure' for 'attachment'.

In my view, the first respondent’s action against the appellant company should not be treated as an abuse of the process of the court unless at this stage it is plain beyond a peradventure that the action cannot succeed.p. 10
CM
majority
On appeal from
High Court of Kenya
High Court suit against first and second defendants arising from High Court Civil Case No. 2468 of 1976 (attachment suit No. 2483/2488 of 1976 referred to)
Jurisdiction invoked
First appeal to the Court of Appeal against an interlocutory ruling of the High Court (appeal as of right from the High Court)

Relief refused

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Striking out the plaint against the second defendant as disclosing no cause of action

The application was incompetent as drafted and, in any event, the pleading showed a reasonable cause of action; the jurisdiction is exercised only in plain and obvious cases

p. 6

Striking out the suit as an abuse of the process of the court

The averments complained of the initial wrongful seizure and detention of the plaintiff's vehicle, not merely obedience to the attachment order, so the suit was not an abuse of process

p. 7

Other amendments to the plaint sought by the plaintiff

Unnecessary in view of the dismissal of the appeal; plaintiff may apply to amend as indicated in the High Court ruling

p. 7

Costs

Appeal dismissed with costs to the plaintiff (first respondent).

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

No suit ought to be summarily dismissed unless itappears 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.
p. 6Test for summary dismissal under Order VI rule 13
Ifa 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 fullfacts of a case before it.
p. 6Sustaining suits curable by amendment
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 beingotherwise an abuse of the process of the court.
p. 5Caution in exercising the striking-out jurisdiction
The second defendant's application was therefore incompetent.It was also incompetent because it did not comply withthe requirements of subrule (2) that the application shallstate concisely the grounds upon which it is made.
p. 6Competence requirements of a rule 13 application
It seems to me that while it is a fact material to a plaintifi’s case that the negligent act of the defendants’ servant was committed “in the course of his employment”, there is no requirement that those or any specific words appear in the pleading.
p. 9Pleading vicarious liability
I would dismiss the appeal with costs.
p. 7Disposition
I would dismiss this appeal with costs. I would allow the amendment to paragraph 16(B)(a) of the plaint by substituting “seizure” for “attachment”.
p. 10Potter JA disposition
As Miller and Potter, JJ.A. agree it is so ordered.
p. 10Final orders of the court

Issues in the judgment

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minor

The judgment gives inconsistent case numbers for the attachment suit in which the conditional attachment order was made: 'Civil Case No. 2468 of 1976' in the opening narrative but 'Civil Case No. 2483 of 1976' and 'Civil Case No. 2488 of 1976' later in the affidavit summary and grounds of appeal.

minor

The name of the second defendant's General Sales Manager who swore the supporting affidavit appears as 'Mbango'-adjacent typo variants: 'Nozir Ahmed' in Madan JA's judgment but 'Nazir Ahmed' in Potter JA's judgment.

minor

The appeal number in this Court and the date of Todd J's ruling in the High Court are not stated in the judgment.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "DT Dobie & Company (Kenya) Ltd v Muchina & another (Civil Appeal 37 of 1978) [1980] KECA 3 (KLR)", Case Analysis (1980). Civil Appeal (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1980/3/eng@1980-03-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.