Kenya Railways Corporation v Development Bank Of Kenya Limited [2017] KECA 505 (KLR)

The Court applied the principles in the DT Dobie (Muchina) case, which both counsel relied on. The application before the High Court was based on grounds (b), (c) and (d) of rule 15(1) - frivolity, prejudice to fair trial and abuse of process - not on failure to disclose a cause of action. The learned Judge stated he had warned himself of the Muchina parameters, but his ruling unmistakably showed the verdict was reached after a minute and thorough analysis of the law and documentary evidence, contrary to those parameters.

The learned Judge made definitive findings on whether Erdemann breached the tender documents, on post-tender negotiations, and on the legal consequences of the sale of one of the tendered properties. That evidence was gathered from annexed correspondence and was not subjected to cross-examination. The plaint disclosed an arguable case for enforcement of both the bid and performance guarantees, with disputed facts requiring thorough examination at trial. The application did not satisfy any of the grounds of Order 2 rule 15(1).

The learned Judge found that paragraph 2.21 of the tender documents, the clause triggering forfeiture of the bid bond, did not exist; the appellant contended it was in fact paragraph 1.23. The learned Judge also made detailed findings on post-tender negotiations and the sale of a tendered property to a third party. These were matters requiring evidence tested at trial, not resolution on a striking-out application.