Joseph Ochieng & 2 others t/a Acquiline Agencies v First National Bank of Chicago [1990] KECA 58 (KLR)
The bottom line
#Kenya's Court of Appeal ruled a deficient lawsuit should have been amended, not thrown out, especially since the business owner had no lawyer.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the plaint disclosed a cause of action for inducing breach of contract
- 2.Whether the judge was right in allowing the bank's advocate to raise the striking-out point by preliminary objection on notice rather than by chamber summons under order 6 rules 13 and 16 of the Civil Procedure Rules
- 3.Whether the striking out of the plaint caused injustice or prejudice to the appellant
Key legal issues
#Adequacy of the pleading of the tort of inducing breach of contract
The plaint was deficient because it did not allege malice or give particulars, but the deficiency was curable by amendment.
Applying Bullen and Leake, the tort requires knowledge of the contract, intentional interference, breach directly attributable to that interference, and damage. Although paragraph 7 alleged wrongful and unlawful inducement, it contained no allegation of malice and no particulars. The court held the pleading inadequate but considered that, as a matter of justice, the deficiency should have been cured by amendment rather than by striking out.
Procedure for raising a striking-out point
A preliminary objection may be used to strike out a pleading if the point is purely one of law, but the grounds must be stated concisely under order 6 rule 13(2); the judge exercised his discretion wrongly against an unrepresented litigant.
The court agreed the preliminary objection route was legally permissible, but the notice given did not state the grounds concisely as the rule requires. Had it done so, the appellant could have sought legal advice and applied to amend. Striking out the plaint of an unrepresented party without notice of the grounds drove him from the judgment seat, amounting to injustice and a wrongful exercise of discretion, warranting appellate intervention.
Legal principles established
#- The essential ingredients of the tort of inducing a breach of contract are knowledge of the contract, intentional interference causing breach, direct attribution of the breach to the interference, and damage.
- Striking out of pleadings may be effected by preliminary objection as long as the point raised is purely one of law, but the court has a discretion whether to strike out or order amendment.
- An application to strike out under order 6 rule 13(2) must state concisely the grounds of objection; failure to do so deprives the opposing party of notice and opportunity to respond.
- A pleading that is deficient but curable should ordinarily be amended rather than struck out, especially where a party is unrepresented.
- In applying procedural rules the courts should take into account the economic reality that the majority of Kenyans cannot afford advocates.
Court orders
#- 1.Appeal allowed
- 2.Judgment and decree of the High Court set aside
- 3.Plaint recalled
- 4.Preliminary objection upheld but appellant given leave to amend the plaint within 14 days
- 5.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Jurisdiction invoked
- Appellate Jurisdiction Act (Cap 9), section 3(2)
Relief refused
#Costs of the appeal to the appellant
The appeal succeeded on a ground other than those urged by the appellant
Costs
No orders as to costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
We entirely agree with Mr Lakha that the procedure for striking out pleadings under order 6 rule 13 of the Civil Procedure Rules does not exclude other means for instance, by way of a preliminary objection, as long as the point raised is purely one of law.
The course adopted by the judge deprived the appellant of this right with the result that he was driven from the judgment seat without his complaint being considered on the merits.
In the result this appeal succeeds and is allowed. We set aside the judgment and decree of the High Court, recall the plaint, and exercising our power under section 3(2) of the Appellate Jurisdiction Act (cap 9), make an order upholding the preliminary objection but giving the appellant leave to amend the plaint within 14 days.
As the appeal has succeeded on a ground other than those urged on behalf of the appellant, we make no orders as to costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Ochieng & 2 others t/a Acquiline Agencies v First National Bank of Chicago [1990] KECA 58 (KLR)", Case Analysis (1990). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1990/58/eng@1990-06-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.