Sol Electronics Kenya & 2 others v Raikundalia & another (Civil Appeal 384 of 2018) [2025] KECA 970 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed a counterclaim unrelated to the main case can be struck out and must be filed as a separate lawsuit.
What this practically means
#Executive summary
#Key legal issues
#Admissibility of affidavit evidence on an Order 2 rule 15 striking-out application
Because the respondents' application did not specify any particular ground under Order 2 rule 15(1), it was taken as grounded on all four grounds; affidavit evidence was therefore admissible and the supporting affidavit could not be struck out under rule 15(2), which bars evidence only for applications under rule 15(1)(a).
Order 2 rule 15(2) prohibits evidence only where the application is made solely under rule 15(1)(a) (disclosure of no reasonable cause of action). Following Taj Villas Management Limited v Taj Mall Limited, which adopted Mosi v National Bank of Kenya Ltd, where no particular ground is specified the application is treated as grounded on all the grounds in the rule, and affidavit evidence is then expected. The trial court rightly declined to strike out the affidavit, so the first issue was resolved in favour of the respondents.
Whether the trial court properly exercised its discretion in striking out the counterclaim under Order 7 rule 3
The trial court properly exercised its discretion. The defamation claim was directed at all the appellants, while the counterclaim for breach of fiduciary and statutory duty was directed solely at the 1st respondent and sought production of accounts; there was no nexus between the two causes of action, and the counterclaim could not be conveniently tried with the defamation suit.
Striking out pleadings is discretionary and an appellate court interferes only on the Mbogo v Shah / United India Insurance grounds. Order 7 rule 3 gives the court a wide discretion, on the plaintiff's application, to refuse permission for a counterclaim that cannot be conveniently disposed of in the pending suit. The court found no nexus between the defamation claim and the alleged breach of fiduciary duty; the trial court was therefore correct to hold the counterclaim should be tried separately, and the appeal failed.
Legal principles established
#- Where an application to strike out pleadings under Order 2 rule 15(1) does not specify a particular ground, and is therefore brought under all the grounds, affidavit evidence is admissible and there is no basis to strike out an affidavit filed in support.
- An appellate court will not interfere with a trial court's exercise of discretion unless the judge misdirected himself in law, misapprehended the facts, took into account irrelevant considerations, failed to take into account relevant considerations, or the decision is plainly wrong.
- Under Order 7 rule 3 of the Civil Procedure Rules, the court has a wide discretion, on the application of the plaintiff, to refuse permission for a counterclaim that cannot be conveniently disposed of in the pending suit; a counterclaim on a different cause of action may properly be directed to be tried separately.
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal are awarded to the respondents
- On appeal from
- High Court of Kenya, Civil Division, Nairobi
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the High Court exercising original civil jurisdiction (implied; no specific provision stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Abdi & another v Arvic Tours and Travels Ltd (Changed to Ainushmsi Multiple Agencies Ltd) & another (Environment and Land Case E003 of 2023) [2026] KEELC 5277 (KLR)[2026] KEELC 5277 (KLR)30 Jul 2026
- Ethics & Anti-Corruption Commission v Muia & another (Land Case E090 of 2024) [2026] KEELC 3649 (KLR)[2026] KEELC 3649 (KLR)16 Jun 2026applied
- County Government of Nakuru v Walia (Civil Application E001 of 2026) [2026] KECA 576 (KLR)[2026] KECA 576 (KLR)17 Mar 2026applied
Cite this brief
#Cite this brief
Caselaw, "Sol Electronics Kenya & 2 others v Raikundalia & another (Civil Appeal 384 of 2018) [2025] KECA 970 (KLR)", Case Analysis (2025). Civil Appeal No 384 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/970/eng@2025-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.