Ogweno v Modern Coast Coaches Limited (Employment and Labour Relations Cause E837 of 2021) [2024] KEELRC 534 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the application invoking Order 2 rule 15(1)(a) but pleaded under sub-rules (b), (c) and (d) was properly before the court
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)
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.
Whether affidavit evidence could support the strike-out application
Filing affidavit evidence in support of an application under Order 2 rule 15(1)(a) contravenes Order 2 rule 15(2) and is unacceptable
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.
Whether the claim should be struck out on the merits
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
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.
Legal principles established
#- 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
#- 1.The application dated 22nd May 2023 is dismissed with costs to the Claimant
- Jurisdiction invoked
- Order 2 rule 15 of the Civil Procedure Rules (ELRC jurisdiction under its own procedure)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.