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High CourtDismissedCivil Suit No 92 of 2019· [2020] KEHC 9695 (KLR)

Lindon Nicholas Otieno v Dale Bolton & Schola Munyao t/a Munyao Kayugira & Co Advocates

High Court of Kenya
26 May 2020
2,059 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Courts are highly reluctant to dismiss lawsuits early, even if a defendant is an agent, requiring the case to proceed to trial.

What this practically means

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Executive summary

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The 2nd Defendant, an advocate sued over a letter dated 11th December 2018 published on behalf of her client, Organics for Orphans International, applied under Order 2 Rule 15(1)(a) of the Civil Procedure Rules, 2010 for striking out of the suit against her on the ground that it disclosed no reasonable cause of action, arguing that as an agent of a disclosed principal she could not be sued alongside the principal, citing City Council of Nairobi v Githua and Victor Mabachi v Nurtun Bats. The Plaintiff opposed, relying on Saudi Arabia Airlines v Petroleum Company, contending the application was vexatious and an abuse of process. The court restated the settled principles that striking out pleadings before full trial is a draconian step to be exercised sparingly and only in plain and obvious cases, drawing on D.T. Dobie v Muchina, Geminia Insurance, Elijah Sikona and Wedlock v Moloney. Perusing the Plaint, the court found the Plaintiff genuinely aggrieved and complaining of words published by the 2nd Defendant, analogising to an author being sued together with the newspaper that publishes the article. Whether the facts would prove the case against her was a matter for trial. Striking out at that stage would potentially infringe the Plaintiff's right to have his dispute determined under Article 50(1) of the Constitution. The application was dismissed with costs in the cause, and the Plaintiff was directed to take a date for Pre-Trial Directions within sixty days, failing which the 2nd Defendant could take steps to safeguard her interests.

Key legal issues

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01

Whether a suit against an advocate who published a letter on behalf of a disclosed client discloses no reasonable cause of action

Holding

The suit was not struck out; whether the words were defamatory and whether liability attaches to the 2nd Defendant is a matter for trial

Reasoning

The court perused the Plaint and found the Plaintiff complained of words published by the 2nd Defendant, analogising to suing an author together with the newspaper that publishes the article. Whether the facts suffice to prove the case against the 2nd Defendant was a matter of evidence for trial, not for determination on a striking-out application.

p. 3
02

The standard for striking out pleadings under Order 2 Rule 15(1)(a)

Holding

Striking out must be exercised sparingly, cautiously and only in plain and obvious cases; a party should not be deprived of a full trial unless the matter is plain and obvious

Reasoning

Relying on D.T. Dobie v Muchina, Geminia Insurance, Elijah Sikona and Wedlock v Moloney, the court held that summary jurisdiction was never intended to involve minute examination of documents or facts, and courts must be cautious to deny parties the opportunity to ventilate their cases.

p. 2

Legal principles established

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  • Striking out pleadings before full trial is a draconian step to be used sparingly and only in the clearest of cases
  • No evidence is admissible on an application under Order 2 Rule 15(1)(a); the court considers only the pleading itself

Court orders

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  1. 1.The 2nd Defendant's Notice of Motion dated 7th June 2019 and filed on 11th June 2019 is dismissed
  2. 2.Costs of the application to be in the cause
  3. 3.Plaintiff directed to take a date for Pre-Trial Directions at the Registry within sixty (60) days from the date of the Ruling, failing which the 2nd Defendant may take action to safeguard her interests

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 2 Rule 15(1)(a), (2), (3)
  • Constitution of KenyaArticle 50(1)

Cases cited (8)

  • City Council of Nairobi vs Wilfred Kamau Githua t/a Githua Associates & Another
    [2016] eKLR

    An agent cannot be sued where there is a principal

  • Victor Mabachi & Another vs Nurtun Bats Limited
    [2013] eKLR

    An agent cannot be sued where there is a principal

  • Saudi Arabia Airlines Corporation vs Petroleum Company Limited
    [1986] eKLR

    Striking out divests a party of a hearing and should be used sparingly

  • Grace N Karianjahi vs Dr Simon Kanyi Mbuthi
    [2002] eKLR

    Definition of frivolous, vexatious pleadings and abuse of court process

  • D.T. Dobie Co Ltd vs Muchina
    [1982] KLR

    Striking out pleadings is a draconian step used sparingly in clearest cases

  • Geminia Insurance Co Limited vs Kennedy Otieno Onyango
    [2005] eKLR

    Striking out is draconian, employed in clearest cases where suit is beyond redemption

  • Elijah Sikona & Another vs Mara Conservancy & 5 Others
    [2013] eKLR

    Striking out jurisdiction exercised sparingly in clear and obvious cases

  • Wedlock vs Moloney
    [1965] 1 WLR 1238

    Summary jurisdiction not intended for minute and protracted examination of documents and facts

Jurisdiction invoked
Original civil jurisdiction of the High Court; application under Order 2 Rule 15(1) of the Civil Procedure Rules, 2010

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, "Lindon Nicholas Otieno v Dale Bolton & Schola Munyao t/a Munyao Kayugira & Co Advocates", Case Analysis (2020). Civil Suit No 92 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/kehc/2020/9695/eng@2020-05-26

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