Giro Commercial Bank Ltd. v Ali Swaleh Mwangula
The bottom line
#Kenya's Court of Appeal ruled that courts rarely strike out lawsuits, even when filed late, if there is a genuine issue to be tried.
What this practically means
#Executive summary
#Key legal issues
#Striking out a pleading under Order 2 rule 15
The power is discretionary and not mandatory even where the four conditions are satisfied; striking out must be the last resort and one triable issue suffices to save a suit.
Order 2 rule 15 allows striking out only if any of the four grounds is proved. The provision leaves discretion to the court: instead of striking out, the court may order amendment, stay, dismissal or judgment. Striking out is a draconian power to be used sparingly in clear cases, and even one triable issue is enough to spare a suit. Here the amended plaint pleaded a clear cause of action against each party, so striking out was unwarranted.
Joinder at the instance of the joining party and cause of action
A party who sought to be joined on its own volition cannot then complain that the plaint discloses no reasonable cause of action against it; a plaint need only show the defendant is interested in the subject matter and liable to answer the plaintiff's demand.
The appellant and Car & General (K) Ltd informally sought joinder to protect their interests in land affected by the suit. Order 4 rule 5 requires only that a defendant be interested in the subject matter and liable to answer the demand. The amended plaint pleaded specific allegations against each of them, so the no-cause-of-action ground was baseless.
Breach of the consent order timeline for amending the plaint
Failure to amend within 14 days did not render the suit incompetent; the court retains power under Order 8 rule 6 to extend the period, and the judge properly exercised discretion in indulging the late filing given no prejudice.
The amendment was prompted by the joining parties themselves. The delay of three months was held not inordinate; the judge was empowered by Article 159 of the Constitution and the overriding objective to indulge the late filing. The parties' active participation in the proceedings contradicted their position that the suit should be struck out. Striking out would have forced them to start afresh at expense and time.
Absence of summons to enter appearance and the interlocutory judgment
Service of summons on newly added parties is generally mandatory (John Kamunya), but the irregularity here did not justify striking out the suit; instead the interlocutory judgment obtained without service, on a non-liquidated claim, was irregular and was set aside.
Summons requirements exist so that no proceedings are conducted to the detriment of a party in absence. The appellant's advocates filed a notice of appointment, memorandum of appearance and participated actively. The respondent, having applied for default judgment without filing an affidavit of service and on a non-liquidated claim, was intent on stealing a match; the judgment was irregular though not itself appealed against, and the court dealt with it as intertwined with the appeal.
Interference with judicial discretion on appeal
The appellate court found no transgression: the judge considered the background of the joinder, absence of prejudice, and her power to indulge late filing.
Following Mbogo v Shah and Supermarine Handling Services, an appellate court interferes only where a discretion is exercised wrongly, unjudicially, on wrong principles, or with absent or insufficient reasons. Here the judge took into account relevant matters and exercised her discretion on proper principles, so the appeal had no substance.
Legal principles established
#- Striking out pleadings is a draconian power that must be exercised sparingly, only in clear cases, and only as a last resort; even one triable issue will spare a suit from being struck out.
- An appellate court will not interfere with the exercise of judicial discretion unless the order is wrong and given unjudicially or on wrong principles, or the reasons given are absent or insufficient.
- Under Order 10 rule 2, an affidavit of service of summons must be filed before proceedings are taken against a defaulting party; interlocutory judgment entered without service, and on a claim that is not liquidated, is irregular.
- Where a court grants leave to amend with a time limit, that limit may be extended by the court; failure to amend within time does not automatically render the suit incompetent.
Court orders
#- 1.The appeal is dismissed with costs to the respondent
- 2.The interlocutory judgment entered on 18th September 2015 is set aside
- 3.The appellant and Car and General (K) Ltd are granted 14 days from the date of the judgment to file and serve their respective statements of defence
- On appeal from
- Environment and Land Court of Kenya at Mombasa
- ELC. Case No. 261 of 2013
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Appellate Jurisdiction Act (sections 3 and 3A invoked in the orders)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mulalya v Muathe & 2 others (Environment and Land Case Civil Suit 27 of 2017) [2025] KEELC 6019 (KLR)[2025] KEELC 6019 (KLR)16 Sept 2025
- Mulalya v Muathe & 2 others (Environment and Land Case Civil Suit 27 of 2017) [2025] KEELC 6019 (KLR)[2025] KEELC 6019 (KLR)16 Sept 2025applied
Cite this brief
#Cite this brief
Caselaw, "Giro Commercial Bank Ltd. v Ali Swaleh Mwangula", Case Analysis (2016). Civil Appeal No. 87 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/259/eng@2016-10-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.