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Court of AppealDismissedCivil Appeal 261 of 2017· [2022] KECA 566 (KLR)

Peter O. Ngoge t/a O.P Ngoge & Associates Advocates v Muiruri

Court of Appeal
13 May 2022
ASAsike-MakhandiaFSF. SichaleHOH. Omondi
2,985 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that a lawsuit with genuine disputed facts must go to full trial and cannot be struck out early.

What this practically means

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Executive summary

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This is a first appeal against a High Court ruling (Odunga, J., dated 20 September 2012 in HCCC No. 813 of 2007) dismissing the appellant advocate's application to strike out a defamation suit brought against him by a former Chief Magistrate and Deputy Registrar. The suit arose from a letter the appellant wrote to the Chief Justice alleging that the respondent was corrupt, incompetent and unfit to hold judicial office in the conduct of certain proceedings. The appellant had applied to strike out the plaint under Order VI rule 13(1)(a) of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, arguing, among other grounds, that the suit disclosed no cause of action because the Judicial Service Commission had not determined his complaint, and that separation of powers barred the High Court from entertaining it. The Court of Appeal framed a single issue: whether the trial court properly exercised its discretion in dismissing the striking-out application. Applying the D.T. Dobie principles, the Court held that an application to strike out need not be supported by evidence, that the jurisdiction is draconian and must be exercised sparingly in clear and obvious cases, and that the plaint raised triable issues resolvable only at a full trial. The other grounds of appeal were held irrelevant, as they were not issues for determination on such an application. The appeal was dismissed with costs, affirming the decision below.

Key legal issues

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01

Whether the trial court properly exercised its discretion in dismissing the application to strike out the plaint

Holding

The trial court properly exercised its discretion; the plaint raised triable issues and was not hopeless or incurable by amendment.

Reasoning

The Court applied the D.T. Dobie principles: striking out is draconian, to be invoked sparingly in clear and obvious cases. The issues raised in the plaint, defence and grounds of appeal showed the suit was not frivolous and required interrogation at a full trial. The other grounds of appeal were irrelevant as they were not issues for determination on such an application.

p. 5
02

Whether the defamation suit disclosed no reasonable cause of action because the JSC had not determined the complaint

Holding

The suit was not hopeless; the issues raised could only be resolved at a full trial.

Reasoning

The Court held that the issues raised by the appellant, who had gathered material worldwide in support of his defence, were not candidates for summary disposal and raised several triable issues. The fact that the suit might not succeed in light of the defences did not render it hopeless.

p. 5

Legal principles established

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  • An application to strike out a pleading for failure to disclose a reasonable cause of action need not be supported by evidence; the applicant need only state the grounds concisely.
  • The power to strike out a pleading is draconian and must be exercised sparingly, in clear and obvious cases, without embarking on a trial of the suit.
  • A suit raising a triable issue, even if it may ultimately fail, ought to go to trial rather than be summarily dismissed.

Court orders

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  1. 1.Appeal dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder VI rule 13(1)(a)
  • Civil Procedure ActSection 3A
  • Judicature ActSection 6
  • Constitution of KenyaArticles 10, 22, 25, 27, 37, 48, 50, 160, 165, 168, 172, 258
  • African Charter on Human and Peoples' RightsArticles 2, 3 and 7

Cases cited (4)

  • The Owners of the Motor Vessel Lillian "S" Vs. Caltex Kenya Ltd (1989) KLR 1
    (1989) KLR 1

    Without jurisdiction a court downs its tools and takes no further steps in a matter

  • Mirugi Kariuki Vs. Attorney General [1992] eKLR
    [1992] eKLR

    A court cannot abdicate its jurisdiction merely because proceedings are administrative in nature

  • Ridge Vs. Baldwin [1964] A.C. 40
    [1964] A.C. 40

    Rules of natural justice

  • D.T. Dobie & Company (Kenya) Limited Vs. Joseph Mbaria Muchina & Another [1980] eKLR
    [1980] eKLR

    Principles governing striking out pleadings: act cautiously, do not deal with merits, sustain rather than terminate suits

On appeal from
High Court of Kenya at Nairobi
HCCC No. 813 of 2007
Jurisdiction invoked
First appeal to the Court of Appeal under the Judicature Act/Civil Procedure Act (not expressly stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Peter O. Ngoge t/a O.P Ngoge & Associates Advocates v Muiruri", Case Analysis (2022). Civil Appeal 261 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/566/eng@2022-05-13

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.