SOUTHERN CREDIT BANKING CO-OPERATION LIMITED v YASMIN ABDULKARIM T/A Y. ALI ADVOCATES [2010] KECA 191 (KLR)
The bottom line
#The High Court in Mombasa refused to strike out a negligence claim against an advocate, confirming that striking out suits remains a last resort in Kenya.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaint was scandalous, frivolous or vexatious
The plaint contained no averment that could be described as scandalous, frivolous or vexatious; the defendant's attack on that basis failed.
Applying the Supreme Court Practice definition, a scandalous pleading degrades, alleges dishonesty or imputes bad faith without basis; a frivolous or vexatious one lacks seriousness and tends to annoy. On perusal of the plaint, the court found no such averment, and the defendant's attack was without basis.
Whether the claim was statute-barred under the Limitation of Actions Act
The cause of action against the advocate crystallised upon the delivery of the judgment in HCCC No. 467 of 2000 on 4th June 2004, so the claim filed thereafter was not statute-barred.
The plaintiff could not have sued the defendant over the invalid charge while the defendant's position in the earlier suit was that the charge was valid, and while she was defending and appealing that suit. Prima facie, the cause of action arose only when the charge was declared invalid in 2004; the limitation attack therefore failed.
Whether the suit was an abuse of process for want of provable damage
The nexus between the plaintiff's claims and the payment statements relied on by the defendant could not be conclusively determined on affidavits; possible explanations may succeed at trial but did not render the claim an abuse of process.
Abuse of process connotes use of court process otherwise than bona fide and properly, as a means of vexation and oppression. The court could not say the claim was obviously unsustainable, filed to vex, in bad faith, or intended to oppress, and issues of loss required oral evidence at trial.
The proper approach to striking out pleadings
Striking out is a draconian remedy; the court must not decide merits or express opinions that would bind the trial judge, and should sustain rather than terminate a suit curable by amendment.
Following D. T. Dobie & Company (Kenya) Limited v Muchina, the striking-out power is exercised only after considering all facts, without embarking on the merits, which are reserved for the trial judge. The court accordingly refrained from expressing opinions that would bind the trial judge and found the suit not beyond redemption.
Legal principles established
#- The power to strike out pleadings must be exercised only after considering all facts, without embarking on the merits, and a suit should only be struck out if it is beyond redemption and incurable by amendment.
Court orders
#- 1.The defendant's application to strike out the plaint is dismissed with costs
- Jurisdiction invoked
- Original civil jurisdiction of the High Court; interlocutory application under Order VI Rules 13(1)(b), (d) and 16 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "SOUTHERN CREDIT BANKING CO-OPERATION LIMITED v YASMIN ABDULKARIM T/A Y. ALI ADVOCATES [2010] KECA 191 (KLR)", Case Analysis (2010). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/191/eng@2010-04-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.