Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Small ClaimsDismissed· [2026] SCC 138 (KLR)

Kisiwa Travel and Tours Ltd v Kismat Auto Fabricators (Commercial Case E423 of 2026) [2026] SCC 138 (KLR)

Small Claims Court
30 June 2026
TMTHERESA N. MWANGEKA
668 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

#

A Mombasa Small Claims Court refused to strike out a claim, confirming that disputed facts about who was properly sued must be decided at a full hearing.

What this practically means

#

Executive summary

#
This ruling of the Small Claims Court at Mombasa, delivered by Resident Magistrate/Adjudicator Theresa N. Mwangeka on 30th June 2026, dealt with grounds of opposition dated 15th June 2026 in which the Respondent sought striking out of the Claimant's suit dated 5th October 2022 as hopeless, disclosing no reasonable cause of action and as an abuse of court process, invoking Order 2 Rule 15 of the Civil Procedure Rules. The Claimant opposed, pointing out that pursuant to court orders of 17th June 2026 it had filed a further Amended Statement of Claim dated 16th June 2026, and that the parties were Hamisi Said Ranzuga trading as Kismat Shuttle Services as 1st Respondent and Hamisi Said Ranzuga trading as Kismat Auto Fabricators as 2nd Respondent. The court held that striking out is a draconian and drastic measure to be exercised sparingly and only where a pleading cannot be salvaged by amendment, citing Geminia Insurance Co. Ltd v Kennedy Otieno Onyango and Yaya Towers Limited v Trade Bank Limited (In Liquidation). Relying on the principle in John Musakali v Speaker County of Bungoma that a preliminary objection must rest on agreed facts, the court found that whether the Respondents are correctly sued is a matter for full trial. The grounds of opposition were disallowed with no orders as to costs.

Key legal issues

#
01

Whether the Claim should be struck out as hopeless and an abuse of process

Holding

The application to strike out was disallowed; the question whether the Respondents are correctly sued requires full trial

Reasoning

The court reiterated that striking out is discretionary, draconian and to be used sparingly, only where a pleading cannot be amended. The Claimant had further amended its Statement of Claim pursuant to court orders of 17 June 2026, and the dispute over whether the Respondents are correctly sued involves disputed facts that cannot be resolved on a preliminary point of law, per John Musakali v Speaker County of Bungoma.

p. 2

Legal principles established

#
  • Striking out a suit or pleading is a draconian and drastic measure to be exercised sparingly and only where a pleading cannot be salvaged by amendment
  • A preliminary objection must rest on agreed facts; where facts are disputed and remain to be ascertained it is unsuitable

Court orders

#
  1. 1.The grounds of opposition dated 15th June 2026 seeking striking out of the Claim are disallowed
  2. 2.No orders as to costs

Authorities

#

Legislation

  • Civil Procedure RulesOrder 2 Rule 15

Cases cited (3)

  • Geminia Insurance Co. Ltd v Kennedy Otieno Onyango
    [2005] KEHC 374 (KLR)
  • Yaya Towers Limited v Trade Bank Limited (In Liquidation)
    [2000] KECA 427 (KLR)
  • John Musakali v Speaker County of Bungoma & 4 others
    (2015) eKLR
Jurisdiction invoked
Small Claims Court Act (implied; not expressly cited in the ruling)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kisiwa Travel and Tours Ltd v Kismat Auto Fabricators (Commercial Case E423 of 2026) [2026] SCC 138 (KLR)", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/scc/2026/138/eng@2026-06-30

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