Uchumi Supermarkets Limited & another v Sidhi Investments Limited [2019] KECA 851 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that courts will rarely strike out a lawsuit at the outset if it raises genuine disputes that deserve a full hearing.
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 trial judge was right in failing to strike out the Respondent's plaint
- 2.Whether the plaint as filed discloses triable issues
- 3.Whether the Court of Appeal should interfere with the exercise of the trial court's discretion
Key legal issues
#Whether the trial judge erred in refusing to strike out the plaint under Order VI rule 13(1)(b) and (d) of the repealed Civil Procedure Rules
The trial judge correctly exercised his discretion; the plaint raised triable issues of fact and law, including whether the offer was accepted and whether a constructive trust arose, so the appeal was dismissed.
Striking out is a draconian, discretionary remedy of last resort, exercised only in plain cases where a pleading discloses no semblance of a cause of action and is incurable by amendment. An appellate court interferes only where the judge erred in principle or was plainly wrong. Here the plaint raised genuine disputes - whether the offer was accepted, whether the KShs. 11.8 million deposit was received and accepted, and whether a constructive trust arose under section 3(3) of the Law of Contract Act - all of which required trial. The judge neither misdirected himself nor considered extraneous matters.
Whether a suit founded on an oral contract for the disposition of an interest in land is necessarily barred by section 3(3) of the Law of Contract Act
The trial judge correctly reasoned that section 3(3) was not meant to aid a party in furtherance of fraudulent acts, and the statutory amendment introduced exceptions for contracts in the course of a public auction and the creation of a resulting, implied or constructive trust.
The Appellants argued that no written contract existed as required by section 3(3) of the Law of Contract Act, so nothing was enforceable. The High Court held that a party cannot advertise the land, negotiate the price, accept and retain a 10% deposit, and then invoke the statute to deny a valid contract. The legislature amended the section through the Statute Law Miscellaneous Amendments Act No. 2 of 2002 to exclude public auction contracts and resulting, implied or constructive trusts from the writing requirement. Whether a constructive trust arose was a triable issue.
Legal principles established
#- The power to strike out a pleading is discretionary and must be exercised with the greatest care and caution, as striking out is a draconian remedy of last resort
- An appellate court will not interfere with the trial court's exercise of discretion unless the lower court misdirected itself or was clearly wrong, resulting in misjustice
- On an application to strike out pleadings the court must not express opinions on the merits, as that is reserved for the trial judge
- An action should not be treated as an abuse of the court process unless it is plain beyond peradventure at the interlocutory stage that it cannot succeed
Court orders
#- 1.The appeal is dismissed with costs to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C. Civil Case No. 311 of 2005
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Constitution and the Civil Procedure Act (stated as a first appeal re-evaluating the trial court's discretion)
Relief refused
#Appellants' prayer to have the plaint struck out and the suit dismissed as an abuse of process
The trial judge correctly found the plaint raised triable issues of fact and law which could only be determined at trial, and the discretion was exercised on correct principles
Costs
Appeal dismissed with costs to the Respondent
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.
Striking out a pleading is a draconian act, which may only be resorted to, in plain cases...Whether or not a case is plain is a matter of fact....A Court may only strike out pleadings where they disclose no semblance of a cause of action or defence and are incurable by amendment.
… one thing remains clear, and that is that the power to strike out a pleading is a discretionary one. It is to be exercised with the greatest care and caution.
Accordingly, we dismiss the Appeal with costs to the Respondent. Orders accordingly.
Issues in the judgment
#The memorandum of appeal is dated 6th September 2008 yet the judgment cites a 2013 eKLR decision (Abok James Odera), and judgment was delivered on 22nd March 2019 - an unusually long interval suggesting a delayed delivery of the ruling on appeal
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kianda Foundation Educational Trust v Fit Tight Fasteners Ltd & 3 others (Environment and Land Case E006 of 2023) [2025] KEELC 5765 (KLR)[2025] KEELC 5765 (KLR)31 Jul 2025applied
Cite this brief
#Cite this brief
Caselaw, "Uchumi Supermarkets Limited & another v Sidhi Investments Limited [2019] KECA 851 (KLR)", Case Analysis (2019). Civil Appeal No. 192 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/851/eng@2019-03-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.