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Court of AppealDismissedCivil Appeal (Memorandum of Appeal dated 22nd February 2019) from HC Comm Suit No. 246 of 2016

Co-operative Bank of Kenya Limited v X-Treme Electronics Ltd (Civil Appeal 70 of 2019) [2025] KECA 507 (KLR)

Court of Appeal of Kenya
21 March 2025
3,504 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that defences made of bare denials can be struck out, and late amendments meant only to delay a case will be refused.

What this practically means

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Executive summary

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The appellant, Co-operative Bank of Kenya Limited, appealed against a ruling of Kasango J delivered on 29th November 2018 in HC Comm Suit No. 246 of 2016, in which the High Court struck out the bank's statement of defence in a claim by X-Treme Electronics Ltd for Kshs.12,660,128.60 for contractual works, and dismissed the bank's application to amend the defence to introduce a counterclaim. The respondent had applied to strike out the defence as raising no triable issues, being mere denials, frivolous and vexatious. A three-judge bench of the Court of Appeal (Kairu, Tuiyott and Achode JJA) identified three issues: whether striking out was correct; whether amendment should have been allowed; and whether the judge improperly delved into the merits at an interlocutory stage. Applying the D.T. Dobie caution against summary dismissal and Job Kilach's definition of a bona fide triable issue, the Court found the defence contained bare denials without particulars, while the agency relationship with Synchro-consult Associates Ltd was established by official correspondence and the appellant did not deny awarding the cabling work. On amendment, the Court held the discretion must be exercised judiciously; the amendment application, filed seven months after the striking-out application and followed by an unexplained two-year delay in filing a reply, was intended to stall the striking-out application and delay the suit, amounting to an abuse of process. The judge had not improperly entered the merits, having merely stated facts evident on the pleadings. The appeal was dismissed with costs to the respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the superior court was correct in allowing the respondent's application to strike out the defence
  2. 2.Whether the court ought to have allowed the application to amend the statement of defence
  3. 3.Whether the superior court delved into matters that it should not have at an interlocutory stage

Key legal issues

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01

Whether the defence raised triable issues justifying its survival against striking out

Holding

The defence contained bare denials without particulars and raised no triable issues; striking out was proper.

Reasoning

The Court examined the statement of defence and found it simply denied the plaint's contents and offered bare denials without particulars. The agency relationship with Synchro-consult was evidenced by official correspondence, and the appellant did not deny awarding the cabling work. A bona fide triable issue is any matter warranting interrogation at a full trial, but mere denials do not qualify.

p. 5
02

Whether the application to amend the defence should have been allowed

Holding

The discretion was properly exercised in refusing amendment because the application was a reactive, abusive tactic to delay the suit.

Reasoning

Although amendments may be sought at any stage and should be freely allowed where no injustice results, the discretion must be exercised judiciously. The appellant filed its amendment application seven months after the striking-out application and its replying affidavit almost two years later without explanation. The amendment was intended to stall the striking-out application, amounting to an abuse of process.

p. 7
03

Whether the learned judge delved into the merits of the suit at an interlocutory stage

Holding

The judge did not improperly delve into the merits; she merely stated facts evident on the face of the pleadings.

Reasoning

The appellant argued the judge erred by assessing merits without hearing both parties, citing D.T. Dobie. The Court found that the judge merely observed facts evident from the pleadings and affidavit evidence, namely that the contract was awarded, completed, and a practical completion certificate issued, and did not conduct a trial of the merits.

p. 7

Legal principles established

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  • A suit should not be summarily dismissed unless it plainly and obviously discloses no reasonable cause of action and is beyond redemption by amendment; a defence raising bare denials without particulars raises no triable issue.
  • Amendment of pleadings is discretionary and must be exercised judiciously; amendments made in bad faith or to abuse the process should be refused.

Court orders

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  1. 1.Appeal dismissed with costs to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
HC Comm Suit No. 246 of 2016
Jurisdiction invoked
First appellate jurisdiction under Rule 31(1)(a) of the Court of Appeal Rules, 2022

Relief refused

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Setting aside the striking out of the appellant's statement of defence

The defence raised bare denials without particulars and no triable issues

p. 6

Leave to amend the statement of defence

The application to amend was a reactive attempt to stall the striking-out application and delay the suit

p. 7

Finding that the trial judge improperly delved into the merits at interlocutory stage

The judge merely stated a fact evident on the face of the pleadings

p. 7

Costs

Appeal dismissed with costs to the respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

a suit ought not to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action, and is so weak as to be beyond redemption and incurable by amendment.
p. 7test for summary dismissal / striking out
A bona fide triable issue is any matter raised by the defendant that would require further interrogation by the court during a full trial.
p. 5definition of a triable issue
In the premise we find no merit in this appeal and dismiss it with costs to the respondent. It is so ordered.
p. 7disposition

Issues in the judgment

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minor

The judgment quotes the trial court's ruling as referring to a defence 'filed on 12th August 2026', an evident typographical error for 2016, while elsewhere the defence is dated 12th August 2016

minor

The Memorandum of Appeal describes the appellant's amendment application as dated 12th August 2016, whereas the judgment elsewhere records it as dated 11th May 2017

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, "Co-operative Bank of Kenya Limited v X-Treme Electronics Ltd (Civil Appeal 70 of 2019) [2025] KECA 507 (KLR)", Case Analysis (2025). Civil Appeal (Memorandum of Appeal dated 22nd February 2019) from HC Comm Suit No. 246 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/507/eng@2025-03-21

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