Gathaite Farmers Co-operative Society Limited v Peter Maina Miano & 12 others [2018] KEELC 2264 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the suit should be struck out as incompetent
The application failed. The suit disclosed a cause of action in fraud and could not be characterized as frivolous, vexatious or scandalous; the grounds pleaded did not fit Order 2 Rule 15(1)(a) and the deponent supporting the application lacked authority.
The court held that striking out is drastic and reserved for plain and obvious cases. The plaint set out fraud by the 1st and 2nd Defendants who had filed no defence, and a semblance of cause of action mandates trial. Stephen Mwangi, who swore the supporting affidavit, was not a party and produced no authorization from the Society, making his standing doubtful. The undated letter from the Sub County Cooperative Officer was challenged as suspect. On these facts the discretion to strike out was not warranted.
Classification of the striking-out grounds under Order 2 Rule 15
Striking out for 'incompetence' is not a ground envisaged by Order 2 Rule 15; the pleaded grounds (lack of authorization, want of verifying affidavit, deponent's lack of membership) fell instead under Order 2 Rule 15(1)(b) as scandalous, frivolous or vexatious.
The court noted that where an application is brought under Rule 15(1)(a), no evidence is admissible and the grounds must be concisely stated. Since the application sought striking out for general incompetence, a ground outside the rule, the court treated the actual grounds as engaging Rule 15(1)(b) and assessed them on that basis, finding they were not established.
Capacity and locus standi of the deponent of the supporting affidavit
Stephen Mwangi, not being a party and producing no authorization from the Plaintiff Society, lacked ascertainable capacity to support the Defendants' application and appeared to be a busy body.
The court observed that Mwangi neither deponed to authority from the Plaintiff nor produced evidence of any employment or relationship with it, and the undated letter of S.K. Thuku did not name Arcadius Njora Chege and was challenged as suspect. The Defendants had also never filed a defence despite service, suggesting the application was an attempt to escape a formal response to serious fraud allegations.
Legal principles established
#- Striking out is a drastic remedy, to be invoked only in plain and obvious cases and exercised with extreme caution; a suit showing a semblance of a cause of action should go to trial
- An application under Order 2 Rule 15(1)(a) requires that the grounds be concisely stated and no evidence is admissible; an application to strike out for 'incompetence' does not fall within the enumerated grounds
- A stranger to a suit without demonstrated authority or relationship to a party lacks capacity to swear affidavits supporting applications in that suit
Court orders
#- 1.The Defendants' application to strike out the suit was dismissed with costs to the Plaintiffs
- Jurisdiction invoked
- Original jurisdiction; striking-out application under Order 2 Rule 15 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gathaite Farmers Co-operative Society Limited v Peter Maina Miano & 12 others [2018] KEELC 2264 (KLR)", Case Analysis (2018). Not stated in judgment (Murang'a ELC suit filed 28/7/2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2264/eng@2018-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.