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ELRCDismissedApplication dated 22nd May 2023 (suit number not stated in judgment)· [2024] KEELRC 534 (KLR)

Ogweno v Modern Coast Coaches Limited (Employment and Labour Relations Cause E837 of 2021) [2024] KEELRC 534 (KLR)

Employment and Labour Relations Court
7 March 2024
843 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Respondent filed a notice of motion dated 22nd May 2023 seeking to strike out the Claimant's suit on the ground that it disclosed no reasonable cause of action, supported by an affidavit of Christine Mufutu, its Operations Manager. The Respondent alleged the Claimant, while serving as its IT Manager, defrauded it of over twenty-two million Kenya Shillings, failed to attend a disciplinary session, and offered to settle the criminal charge out of court. The Claimant opposed the application, denying service of a notice to show cause, denying invitation to a disciplinary session, and denying any role in the alleged loss of funds. The court analysed Order 2 rule 15 of the Civil Procedure Rules and held that the application was defective: it sought striking out for want of a reasonable cause of action, a ground available only under rule 15(1)(a), yet invoked sub-rules (b), (c) and (d); and it was supported by affidavit evidence contrary to rule 15(2), which bars evidence on such applications. Relying on Kenol Kobil Ltd v David Mugo Ndumia & 2 others [2019] eKLR, the court reiterated that striking out pleadings is a last resort reserved for irredeemably hopeless pleadings, and that the Respondent's allegations were matters for its defence at a full trial. The application was dismissed with costs to the Claimant. The judgment was delivered online with the parties' consent, waiving Rule 28(3) of the ELRC Procedure Rules.

Key legal issues

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01

Whether the application invoking Order 2 rule 15(1)(a) but pleaded under sub-rules (b), (c) and (d) was properly before the court

Holding

The application was defective because a party seeking to strike out a pleading for want of a reasonable cause of action must invoke Order 2 rule 15(1)(a) specifically and cannot rely on sub-rules (b), (c) and (d)

Reasoning

The court reasoned that whether a pleading discloses a reasonable cause of action is self-evident from a cursory look at the pleading, so evidence is inadmissible under sub-rule (1)(a). The Applicant asserted it had moved the court under sub-rules (b), (c) and (d), which do not rest on absence of cause of action, making the application internally defective.

p. 2
02

Whether affidavit evidence could support the strike-out application

Holding

Filing affidavit evidence in support of an application under Order 2 rule 15(1)(a) contravenes Order 2 rule 15(2) and is unacceptable

Reasoning

Order 2 rule 15(2) expressly bars evidence on applications under sub-rule (1)(a). The Respondent nonetheless filed an affidavit sworn by its Operations Manager, Christine Mufutu, in support of the application. The court held this was contrary to the express provision of the Rules and unacceptable.

p. 2
03

Whether the claim should be struck out on the merits

Holding

The grounds raised by the Respondent (alleged fraud and failed disciplinary process) are matters for the defence at a full trial, not for striking out

Reasoning

The court applied the last-resort principle from Kenol Kobil Ltd v David Mugo Ndumia & 2 others. The Respondent's allegations that the Claimant defrauded it of over KES 22 million and failed to attend a disciplinary session were disputed factual matters that the Claimant denied; they could only be canvassed in the defence and determined at trial.

p. 2

Legal principles established

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  • No evidence is admissible on an application to strike out a pleading under Order 2 rule 15(1)(a); the applicant must specify the sub-rule invoked
  • Striking out of pleadings is a measure of last resort and should only be done where the pleading is irredeemably hopeless

Court orders

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  1. 1.The application dated 22nd May 2023 is dismissed with costs to the Claimant

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 rule 15(1)
  • Civil Procedure RulesOrder 2 rule 15(2)
  • ELRC Procedure RulesRule 28(3)

Cases cited (1)

  • Kenol Kobil Ltd v David Mugo Ndumia & 2 others
    [2019] eKLR
Jurisdiction invoked
Order 2 rule 15 of the Civil Procedure Rules (ELRC jurisdiction under its own procedure)

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, "Ogweno v Modern Coast Coaches Limited (Employment and Labour Relations Cause E837 of 2021) [2024] KEELRC 534 (KLR)", Case Analysis (2024). Application dated 22nd May 2023 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/534/eng@2024-03-07

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