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High CourtDismissed

Plaintiff v Defendant (application to strike out plaint)

High Court of Kenya
9 October 2020
POP J O Otieno
826 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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If your lawsuit presents a potential claim, the court will not dismiss it just because the facts are complicated.

What this practically means

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Executive summary

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The plaintiff sued the defendant, its bankers, for damages arising from a contract to provide a security bond supporting its tender for material handling and logistical support services for civil works at Manda Airstrip. The plaintiff alleged it paid for a bond covering 150 days, but the defendant's negligence and breach of duty of care resulted in a bond of only 120 days, causing the tender to be declared non-responsive. The defendant applied to strike out the plaint for failure to disclose a reasonable cause of action, contending it was frivolous, vexatious and an abuse of process. It relied on a letter dated 17/05/2018 from the procuring entity showing the entire tender was non-competitive and no award was made, arguing that even a 150-day bond would not have made the tender responsive. The court restated the settled principles: striking out is a discretionary remedy to be exercised with the greatest care and caution, and a pleading should only be struck out if it is so weak as to be incapable of being saved by amendment; a mere semblance of a cause of action suffices. Applying the rule that a plaint is assessed on its own allegations assumed true, the court held that whether the non-responsive bond, rather than the non-competitive tender, caused the plaintiff's failure was a question for evidence at hearing. Finding the plaint not hopeless, the court dismissed the application with costs on 9 October 2020.

Key legal issues

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01

Whether the plaint discloses a reasonable cause of action against the defendant bankers for providing a security bond of 120 instead of 150 days

Holding

The plaint discloses a question to be investigated; striking out was refused because causation (whether the non-responsive bond, rather than the non-competitive tender, caused the loss) is a matter for evidence at hearing.

Reasoning

The court applied the settled test that striking out requires the plaint to be hopeless, and that a cause of action is assessed on the plaint alone with its facts assumed true. Whether the defendant's negligence caused the plaintiff's loss could not be conclusively determined on the pleadings, so the draconian remedy of striking out was inappropriate.

p. 2

Legal principles established

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  • A pleading should not be struck out unless it is so weak, frivolous and tenuous as to be incapable of being saved by amendment; a mere semblance of a cause of action suffices to resist striking out.
  • Whether a plaint discloses a cause of action is determined on the plaint alone, assuming its express or implied factual allegations are true.

Court orders

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  1. 1.The defendant's application to strike out the plaint is dismissed with costs
Jurisdiction invoked
Original civil jurisdiction of the High Court; Civil Procedure Rules provisions on striking out pleadings (not expressly cited)

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, "Plaintiff v Defendant (application to strike out plaint)", Case Analysis (2020). . Source:

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