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Court of AppealDismissedCivil Appeal No 384 of 2018· [2025] KECA 970 (KLR)

Sol Electronics Kenya & 2 others v Raikundalia & another (Civil Appeal 384 of 2018) [2025] KECA 970 (KLR)

Court of Appeal
23 May 2025
4,290 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is an appeal to the Court of Appeal (Asike-Makhandia, K. M'Inoti and Mumbi Ngugi, JJ.A) against a ruling of the High Court, Civil Division, Nairobi (L. Njuguna J) dated 12th July 2018, which allowed the respondents' application to strike out the 1st appellant's counterclaim in a defamation suit. The counterclaim alleged breach of fiduciary and statutory duty by the 1st respondent and sought production of bank statements and books of account. The High Court held that, although it had jurisdiction over the counterclaim, it raised a different cause of action from the defamation claim and could not be conveniently tried with it. The Court of Appeal framed two issues: whether the trial court erred in failing to strike out the respondents' supporting affidavit, and whether it improperly exercised its discretion in striking out the counterclaim. On the first issue, the Court held that since no specific ground under Order 2 rule 15(1) was specified, the application was grounded on all the grounds, affidavit evidence was admissible, and there was no basis to strike out the affidavit. On the second issue, applying the Mbogo v Shah principles and County Government of Kilifi v Mombasa Cement Limited, the Court found no nexus between the defamation claim and the breach-of-fiduciary-duty counterclaim, held that the trial court correctly exercised its discretion under Order 7 rule 3, and noted the 1st appellant could file a specific claim against the 1st respondent. The appeal was dismissed with costs to the respondents on 23rd May 2025.

Key legal issues

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01

Admissibility of affidavit evidence on an Order 2 rule 15 striking-out application

Holding

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).

Reasoning

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.

p. 6
02

Whether the trial court properly exercised its discretion in striking out the counterclaim under Order 7 rule 3

Holding

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.

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal are awarded to the respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 rule 15(1)
  • Civil Procedure RulesOrder 2 rule 15(2)
  • Civil Procedure RulesOrder 7 rule 3
  • Civil Procedure RulesOrder 7 rule 5(d)
  • Civil Procedure RulesOrder 7 rule 12
  • Civil Procedure RulesOrder 51
  • Civil Procedure CodeOrder 3 rule 7 (as cited in the judgment)
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 22

Cases cited (9)

  • Phillys Nyokabi Kamau v Industrial & Commercial Development Corporation
    [2017] eKLR
  • DT Dobie & Company (Kenya) Ltd -vs- Muchina
    [1980] eKLR; [1982] KLR 1
  • Crescent Construction Co. Ltd v Delphis Bank Ltd
    [2007] eKLR
  • Olympic Escort International Co. Ltd & 2 others v Parminder Singh Sandhu & another
    [2009] eKLR
  • County Government of Kilifi v Mombasa Cement Limited
    [2017] eKLR
  • Taj Villas Management Limited v Taj Mall Limited
    [2018] eKLR
  • Mosi v. National Bank of Kenya Ltd
    [2001] KLR
  • Mbogo & Another v Shah
    [1968] EA 93
  • United India Insurance Co Ltd & 2 Others vs East African Underwriters (Kenya) Ltd
    [1985] KLR 898
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.