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MagistrateDismissedMCCC E005/25· [2025] KEMC 370 (KLR)

Mutyaene & 2 others v Maithya (Civil Case E005 of 2025) [2025] KEMC 370 (KLR)

Magistrates' Court
23 December 2025
PNP. E. Nabwana
1,019 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Wamunyu Magistrates' Court refused to throw out a tenant's defence, ruling that disputed rent issues must be heard at a full trial.

What this practically means

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Executive summary

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The 3rd Plaintiff, with the other Plaintiffs, moved the Wamunyu Magistrates' Court under Order 2 Rule 15 of the Civil Procedure Rules, 2010 seeking to strike out the Defendant's defence dated 22nd September 2025 as frivolous, vexatious, a sham and an abuse of process, and to have judgment entered in terms of the plaint. The Plaintiffs argued that the defence contained admissions of tenancy, rent arrears of Kshs. 120,000/=, renovation costs of Kshs. 6,000/=, a down payment of Kshs. 10,000/= and promises of instalments documented in WhatsApp and SMS messages, and that the Defendant was estopped from denying liability under Sections 100 and 120 of the Evidence Act. The Defendant, in a Replying Affidavit dated November 11, 2025, contended that sufficient grounds for striking out had not been shown, that he was under no obligation to reinstate a wall he had pulled down, that the Plaintiffs encouraged him to vacate, that he only admitted service of the demand notice and not its contents, and that the agreed outstanding arrears were Kshs. 31,000/=. The court, per Hon. P. E. Nabwana, Senior Resident Magistrate, framed a sole issue: whether the defence raises triable issues. Applying D.T. Dobie v Joseph Mbaria Macharia and Kenya Trade Combine Ltd v Shah, it held that striking out is a draconian, last-resort remedy and that the defence raised genuine triable issues regarding the demand notice, the circumstances of vacation, the alleged obligation to reconstruct the wall and the quantum of arrears. The Notice of Motion dated October 28, 2025 was dismissed with costs, which were to abide the outcome of the trial.

Key legal issues

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01

Whether the defence raises triable issues warranting striking out under Order 2 Rule 15

Holding

The defence raises genuine triable issues (admission of demand notice, circumstances of vacation, obligation to reconstruct the wall, quantum of arrears) and should not be struck out

Reasoning

The court applied Order 2 Rule 15 and the D.T. Dobie principle that striking out is a last resort and suits should be sustained rather than summarily terminated. Relying on Kenya Trade Combine Ltd v Shah, the court held that a defence raising triable issues need not be one that must succeed. Several disputed issues emerged from the pleadings, so the application was dismissed.

p. 4

Legal principles established

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  • Striking out a defence is a drastic remedy reserved for hopeless pleadings; where a defence shows a semblance of a cause or triable issues, the suit should proceed to trial
  • Triable issues need not be issues that must succeed; they only need to be ventilated through trial

Court orders

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  1. 1.The Plaintiffs'/Applicants' Notice of Motion application dated October 28, 2025 is dismissed
  2. 2.Costs to the Defendant, but such costs shall abide the outcome of the trial
Jurisdiction invoked
Order 2 Rule 15 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, "Mutyaene & 2 others v Maithya (Civil Case E005 of 2025) [2025] KEMC 370 (KLR)", Case Analysis (2025). MCCC E005/25. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/370/eng@2025-12-23

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