Warui v Direct Assurance Company Limited (Civil Suit E020 of 2023) [2024] KEMC 184 (KLR)
The bottom line
#A Kenyan court refused to strike out an insurer's defence because it raised a genuine dispute over payment, confirming that such applications must go to trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the defence should be struck out under Order 2 Rule 15(d) as an abuse of process
The application to strike out was dismissed because the defence raises a bona fide triable issue on whether the defendant paid the entire decretal sum plus assessed appeal costs.
The jurisdiction to strike out pleadings is discretionary and must be exercised judicially. Relying on Postal Corporation v Inamdar, Olympic Escort, and D.T. Dobie, the court held that a defence raising even one triable issue must go to trial. The dispute over whether the insurer discharged its obligation under Cap 405 is a genuine triable issue. Striking out is drastic and reserved for complete shams; the 2010 Constitution, through Article 159(2)(d), demands substantive justice over procedural technicalities.
Whether costs should be awarded and to whom
Costs of the application were awarded to the Defendant/Respondent as the successful party, to be in the cause.
The basic rule is that costs follow the event. The principle serves to compensate the successful party for the trouble taken, not to penalize the losing party. The defendant successfully opposed the striking-out application and was therefore awarded costs.
Legal principles established
#- If a defence raises even one bona fide triable issue, the defendant must be given leave to defend; striking out pleadings is drastic and reserved for complete shams, in line with the override of Article 159(2)(d) favouring substantive justice.
- Costs follow the event and are meant to compensate the successful party, not to penalize the losing party.
Court orders
#- 1.The application dated 1st December 2023 is not merited and it is hereby dismissed with costs to the Defendant/Respondent.
- 2.The costs shall be in the cause.
- 3.Orders accordingly.
- Jurisdiction invoked
- Order 2 Rule 15(d) of the Civil Procedure Rules and Section 3A of the Civil Procedure Act (Cap 21)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Warui v Direct Assurance Company Limited (Civil Suit E020 of 2023) [2024] KEMC 184 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/184/eng@2024-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.