Jadva Bhimji Sanghani & another v Middle East Bank Kenya [2018] KEELC 2186 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to strike out homebuyers' case against their bank, ruling genuine disputes must be decided at trial, not on paper.
What this practically means
#Executive summary
#Key legal issues
#Whether the irregularity of simultaneously filing an Originating Summons and a plaint justified striking out the suit
The irregularity was a candidate for striking out but was cured by the plaintiffs' withdrawal of the Originating Summons on 5th May, 2017, leaving the amended plaint.
The court agreed with the defendant that commencing a suit by simultaneously filing an Originating Summons and a plaint was irregular. However, the plaintiffs' new advocates acknowledged the error and filed a notice of withdrawal of the Originating Summons, leaving only the amended plaint on record. With the irregularity thus corrected, the striking-out application could only succeed if the amended plaint itself was defective.
Whether the amended plaint disclosed a reasonable cause of action and was fit for striking out
The amended plaint raised genuine triable issues and was not frivolous, vexatious or an abuse of process; the application was dismissed.
The court found the plaintiffs had a genuine complaint: the bank, through its receiver, received the full purchase price of Kshs.11,700,000 and had an obligation to transfer the suit property, yet no title had issued. Contentious issues - whether the bank, receiver or company was liable to transfer, whether the plaintiffs' release of 1st July 2008 waived their rights, and the scope of the receiver's powers - could only be determined at trial. Any defect was curable by amendment, including suing the receiver and the bank separately.
Legal principles established
#- The power to strike out pleadings is draconian and should be exercised with great caution and only in the clearest of cases.
- A suit ought not to be summarily dismissed unless it is plainly hopeless and beyond redemption by amendment.
Court orders
#- 1.The Notice of Motion dated 17th December, 2015 is dismissed
- 2.Costs to be in the cause
- Jurisdiction invoked
- Civil Procedure Rules, Order 2 rule 15(1)(b), (c) and (d)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jadva Bhimji Sanghani & another v Middle East Bank Kenya [2018] KEELC 2186 (KLR)", Case Analysis (2018). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2186/eng@2018-07-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.