Luka & 4 others v Taloi & 9 others

RULING 1. Before this court for determination is a notice of motion application dated May 24, 2021 led by the plaintis/applicants and is expressed to be brought under Order 51 Rule 1, Order 2 Rule 15 of the Civil Procedure Rules, Sections 1A,1B and 3A of the Civil Procedure Act seeking the following orders: 1. That the honourable court be pleased to strike out the defendants’ statement of defence dated March 3, 2021. 2. That upon grant of prayer 1, judgment be entered in favour of the plainti as prayed in the plaint. 3. That costs of the application and suit be awarded to the plainti. 2. The application is premised on the grounds on its face and more particularly as set out in the adavit in support thereof. 3. The application is supported by the joint adavit of Ben Oloishorua Luka and Joseph Metamei Mpaayei which was sworn on even date. In their adavit, the applicants deposed that they led a plaint dated July 14, 2021 seeking orders of permanent injunction, eviction among other prayers. That the respondents entered appearance through the rm of Muriithi Kireria & Associates and led a statement of defence dated March 4, 2021. 4. The applicants further deposed that the defence is scandalous, frivolous and only contains mere denials. In addition, that the defendants/respondents have failed to act in good faith as they continue to occupy the suit land to the exclusion and detriment of the applicants/plaintis. 5. Further that the defendants/respondents are intent on depriving the plaintis/applicants from the use of their suit land as insinuated in paragraph 5 of their statement of defence. That the defence does not object to the prayers and is devoid of raising any plausible triable issues and ought to be struck out. 6. The respondents/defendants did not le a response. This court directed that the application be canvassed by way of written submissions. The plaintis/applicants led written submissions dated July 14, 2021. The plaintis/applicants raised three issues for determination as listed below:- 7. 1. Does the plaintis’ application demonstrate that the defence is scandalous, frivolous, vexatious or an abuse of the court process. 2. Is the plainti entitled to the orders sought? 3. Who is entitled to costs? On the rst issue, the plaintis/applicants submitted that this court has inherent jurisdiction to dismiss an action which is an abuse of the court process as has been donated to it by Order 2 Rule 15 of the Civil Procedure Rules. The plaintis/applicants submitted that the defence is shallow, shoddily drafted and does not in any way put any favourable response to the issues raised by the plaintis/applicants. Further that it does not put forward any argument in support of the defendants’/respondents’ ownership or reason of trespass upon the suit land. Reliance was placed in the case of Three Rivers DC v Bank of England [2001] 2 ALL ER 513. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18481/eng@2023-07-04 2

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8. The plaintis/applicants further submitted that the defence by the defendants/respondents dees Order 7 Rule 5 of the Civil Procedure Rules as it has not been veried by an adavit and as such, the defence lacks substance, is frivolous, vexatious and a total abuse of the procedures of the court. 9. On the second issue, the plaintis/applicants submitted that the defence led lacks substance and cannot elicit a dismissal of the suit as it appears to support their claim and they urged the court to save on priceless judicial time and ensure that the process of the court is not abused. The plaintis/ applicants relied on the cases of Anglo Italian Bank versus Wells, 38 LT at page 2012 Jessel, MR and Carl Zeiss Stiffunng v Rayner [1969] 2ALL ER 891 at 908. 10. On the third issue, the plaintis/applicants submitted that they are entitled to the orders sought and costs as well. 11. The defendants/respondents led written submissions on August 22, 2022 the same being dated August 2, 2022. The defendants/respondents raised three issues for determination listed below: a. Whether the honourable court should strike out the respondents’ statement of defence dated March 3, 2021. b. Whether the applicants will incur any prejudice if their application is not allowed. c. Who bears costs for the suit. 12. On the rst issue, the defendants/respondents submitted that in dealing with triable issues, the court recognises that even one triable issue would be sucient. That a court would be entitled to strike out a defence when satised that the defence has no merit and has not even one triable issue in its defence. The defendants/respondents relied on the cases of DT Dobie & Company (K) Limited versus Muchina [1982] KLR 1, Bank of Africa Kenya Limited versus John Karanja Civil Suit No 420 of 2015 and Philip Chemwolo & Another versus Augustine Kubende [1986] eKLR. 13. On the second issue, the defendants/ respondents submitted that the plaintis/applicants have not demonstrated any kind of loss that cannot be compensated by an award of damages and for this reason, the application should be dismissed with costs. 14. I have carefully analysed and considered the application, written submissions and the authorities relied upon by the parties and the issue for determination is whether this court ought to strike out the statement of defence. 15. The jurisdiction to strike out pleadings is discretionary and must be exercised judicially. In Postal Corporation of Kenya versus I.T Inamdar & 2 Others [2004] 1 KLR 359, the court stated that “the law is now well settled that if the defence led by a defendant raises even one bona de triable issue, then the defendant must be given leave to defend.” 16. Also, in The Co-operative Merchant Bank Limited versus George Fredrick Wekesa (Civil Appeal No 54 of 1999) the Court of Appeal stated: “ Striking out a pleading is a draconian act, which may only be resorted to, in plain cases...Whether or not a case is plain is a matter of fact...Since oral evidence would be necessary to disprove what either of the parties says, the appellant’s defence cannot be said to present a plain case of a frivolous, scandalous, vexatious defence, or one likely to prejudice, https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18481/eng@2023-07-04 3

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embarrass or delay the expeditious disposal of the respondent’s action or which is otherwise an abuse of the process of the court.” 17. In Yaya Towers Limited v Trade Bank Limited (In Liquidation) (Civil Appeal No 35 of 2000) the same court expressed itself thus: “ A plainti (defendant) is entitled to pursue a claim in our courts however implausible and however improbable his chances of success. Unless the defendant (plainti) can demonstrate shortly and conclusively that the plainti’s claim is bound to fail or is otherwise objectionable as an abuse of the process of the Court, it must be allowed to proceed to trial...It cannot be doubted that the Court has inherent jurisdiction to dismiss that, which is an abuse of the process of the Court. It is a jurisdiction, which ought to be sparingly exercised and only in exceptional cases, and its exercise would not be justied merely because the story told in the pleadings was highly improbable, and one, which was dicult to believe, could be proved.” 18. Similarly, in DT Dobie & Company Kenya Limited v Joseph Mbaria Muchina & Another [1980] eKLR, Madan, JA (as he then was) stated: “ No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action, and is so weak as to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a court of justice ought not to act in darkness without the full facts of a case before it.” 19. I have read the written statement of defence dated March 3, 2021 led by the rm of Muriithi Kireria & Associates. Paragraph 5 of the defence reads as “That the defendant herein have led their plaint to deprive the plaintis herein of their legal property and to avert justice since the same is frivolous and trivial, meant to defeat justice to the plainti in this counterclaim.” 20. The defendants/respondents proceed to seek judgment against the plaintis for orders of a permanent injunction, costs and interests of the suit. 21. My analysis of the above paragraph shows that the defendants/respondents may have intended to have a counterclaim against the applicants/plaintis save for the use/choice of words which I would fault the drafter. There is total denial of the averments in the plaint save for paragraph 5 which the defendants/ respondents contend that the plaint has been led to deprive them of their legal right to property. This statement on its own is in my view a triable issue. Whether the applicants/plaintis are depriving the defendants/respondents their right to property will be determined after hearing the parties. 22. I have also noted that the said counter claim is not accompanied by a verifying adavit. Order 7 rule 5(a) of the Civil Procedure Rules provides as follows: “ 5. The defence and counter-claim led under rule 1 and 2 shall be accompanied by – a) 23. An adavit under order 4 rule 1 (2) where there is a counterclaim.” My understanding of the above proviso of the law is that, the ling of the counterclaim without a verifying adavit renders the counterclaim as being defective. However, it is my view, that the said defect is not fatal. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18481/eng@2023-07-04 4

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24. I place reliance in the case of Jefitha Muchai Mwai versus Peter Wangio Thuku [2015] eKLR, where Justice Limo held: “ …If a party inadvertently leaves out a verifying adavit or any other document like a statement, he/she could be given a chance to le one and the matter can proceed for determination on merit. If the other party is aected by the attendant delay appropriate costs should adequately address the problem…” 25. Arising from the above, I nd that the notice of motion application dated May 24, 2021 lacks merit. It is hereby dismissed. Costs to be in the cause. The defendants/respondents to le a verifying adavit within seven days from the date hereof. Mention on July 18, 2023 for further directions. It is so ordered. DATED, SIGNED and DELIVERED VIA EMAIL ON 4TH JULY, 2023. Hon. Mbogo C.G Judge 4/7/2023 In the presence of:C/A:T.Chuma https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18481/eng@2023-07-04 5

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