Teleposta Pension Scheme Registered Trustees v Opiyo & 123 others

4. It was deponed that the Defendants, unhappy with the aforesaid decision, led a suit against the scheme being ELC 1348 of 2013-(Thomas Opiyo & 123 Others v Teleposta Pension Scheme Registered Trustees) claiming inter-alia rst priority rights over the purchase of the houses, which suit was struck out by the Court for failure by the Defendants (Plaintis therein) to extract and serve summons upon the Defendant. 5. Mr Rotich deponed that following the striking out of the said suit, the Defendants led a fresh suit being ELC 629 of 2016-(Thomas Opiyo & 123 Others vs Teleposta Pension Scheme Registered Trustees) seeking similar orders as those struck out in the suit and that on 14th December, 2021, the Court delivered its Judgement wherein it found no merit in the case and proceeded to dismiss it. 6. It is the Plainti’s case that subsequent to the delivery of the Judgement, the Plainti led the present suit seeking that the Defendants be directed to give vacant possession of the suit premises within 60 days and in default an eviction order to issue; that the Defendants lodged an Appeal against the Judgement which Appeal does not relate to this suit which purely seeks eviction orders which was not in issue in ELC 629 of 2019 and that the continual occupation of the premises by the Defendants is a hindrance to the Plainti who is obligated to hand over vacant possession of the same to the buyers of the plots. 7. According to the Plainti’s Chairman, the Defendants’ defence contains mere denials and restates prayers sought in their dismissed suit and that the Defendants have not raised any Defence capable of mounting the Plainti’s claim for eviction and vacant possession. 8. In response to the application, the 1st Defendant, Thomas Ochieng Opiyo, deponed that contrary to the Plaintis’ assertion, the houses are not uninhabitable and unsafe for human occupation and the same is a ploy to evict them; that they have been in continuous occupation of the suit property with their families for over two decades and that they have continuously maintained the premises and as such they are t for occupation. 9. It is the Defendants’ case that by virtue of being employees of Telkom Kenya, they were allocated houses for occupation and given rst priority to purchase the suit premises; that after the oer of the intended sale by the Plainti, they made arrangements to secure nancing but the Plainti abandoned the course sometime in 2008 and sought to condemn the houses and that they have led an Appeal at the Court of Appeal against the decision of 14th December, 2014. 10. According to the Defendants, due to the pendency of the Appeal in ELC 629 of 2016, this application if allowed will render the Appeal nugatory; that the Defence raises triable issues which merits full hearing and that the application is made in bad faith and is aimed at rendering them homeless. 11. The Plainti’s counsel submitted that as expressed by the Court in Kenya Commercial Bank v Suntra Investment Bank Limited[2015]eKLR, the Plainti should not be kept away from his Judgement by an unscrupulous Defendants who have led a sham Defence. 12. It was submitted that in the present case, the Defence does not raise any triable issue because it is based on matters already adjudicated upon; that the court may pursuant to Order 2 Rule 15 of the Civil Procedure Rules proceed to strike out the same and that in the case of ASL Credit Limited v Limuru Hills Limited & 2 Others[2020]eKLR, the Court was faced by a similar application and found the Defence to be a sham and struck it out. 13. It was submitted that summary judgement should be entered in favour of the Plainti/Applicant; that as stated by the Court of Appeal in Gupta v Continental Builders Limited [1978]KLR 83, where no triable issue has been put forward against the claim of the Plainti, it is the duty of the Court to https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18700/eng@2023-07-03 2

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forthwith enter summary judgement and that in as much as it is against natural justice to shut out a litigant from defending himself, it is equally unjust to keep a Plainti out of his dues in a proper case. 14. The Defendants’ Counsel submitted that the Plainti’s sole argument is that the issues raised in Defence in this matter are similar to those that were raised in ELC 629 of 2016, a case that involved the same parties and same subject matter; that the Plainti is aware that the Judgment they place reliance on is the subject of an appeal in Civil Appeal No. E276 of 2022 that was led on 9th May 2022, and served upon the Plainti on 19th May, 2022 and that a matter can only be nal when a party elects not to appeal. 15. It was submitted by counsel that the existence of the pending appeal legally deprives the said Judgment its nality and hence cannot be used in the manner in which the Plainti is attempting to do; that other than the appealed Judgment, the Plainti has not raised any other viable ground to warrant a summary dismissal of the suit and that the power to strike out a pleading which ends up in driving a party from the Judgment seat should be used very sparingly and only in cases where the pleading is shown to be clearly untenable. 16. It was submitted by counsel that whereas triable issues need not succeed, the fact that the issue raised is triable warrants it going to trial and that the Plainti should bear the costs of the application. Reliance was placed on the cases of Orix Oil (Kenya) Limited v Paul Kabeu & 2 Others [2014] eKLR and Solomon Odira Okello & Another vs Esther Laboso [2019] eKLR. Analysis & Determination 17. Having carefully considered the Motion, responses and submissions, the issue that arises for determination is whether the Defendants Defence should be struck out and Summary Judgement entered in favour of the Plainti. 18. Vide the present application, the Plainti is asking this Court to strike out the Defendants’ Defence. The Plaintis’ plea in this respect is premised on Order 2 Rule 15(1)(a) of the Civil Procedure Rules which provides as follows; “ 15(1) At any stage of the proceedings the court may order to be struck out or amended any pleadings on the ground that:(a) It discloses no reasonable cause of action or defence in law; (b) it is scandalous, frivolous or vexatious; or (c) it may prejudice, embarrass or delay the fair trial of the action; or (d) it is otherwise an abuse of the process of the court” 19. Indeed, under Order 2 Rule 15 (1), a pleading can be struck out if it discloses no reasonable cause of action or defence in law. 20. In D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & Another, Civil Appeal 37 of 1978 [1980] eKLR, the Court of Appeal set out the principles that guide the court in determining whether or not to strike out a pleading as follows: “ The court ought to act very cautiously and carefully and consider all facts of the case without embarking upon a trial thereof, before dismissing a case for not disclosing a reasonable cause of action or being otherwise an abuse of the process of the court. At this stage the court ought not to deal with any merits of the case for that 'is a function solely reserved for https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18700/eng@2023-07-03 3

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the judge at the trial as the court itself is not usually fully informed so as to deal with the merits "without discovery, without oral evidence tested by cross-examination in the ordinary way". (Sellers, L.J. (supra)). As far as possible, indeed not at all, there should be no opinions expressed upon the application which may prejudice the fair trial of the action or make it uncomfortable or restrict the freedom of the trial judge in disposing of the case in the way he thinks it right. If an action is explainable as a likely happening which is not plainly and obviously impossible the court ought not to overact by considering itself in a bind summarily to dismiss the action. A court of justice should aim at sustaining a suit rather than terminating it by summary dismissal. Normally a law suit is for pursuing it. 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.” 21. More recently, the Court of Appeal in the case of Kivanga Estates Limited v National Bank of Kenya Limited [2017] eKLR, expressed itself thus; “ It is not for nothing that the jurisdiction of the court to strike out pleadings has been described variously as draconian, drastic, discretionary, a guillotine process, summary and an order of last resort. It is a powerful jurisdiction, capable of bringing a suit to an end before it has even been heard on merit, yet a party to civil litigation is not to be deprived lightly of his right to have his suit determined in a full trial. The rules of natural justice require that the court must not drive away any litigant from the seat of justice, without a hearing, however weak his or her case may be. The ip side is that it is also unfair to drag a person to the seat of justice when the case brought against him is clearly a non-starter. The exercise of the power to strike out pleadings must balance these two rival considerations. Although the court exercises discretionary powers in striking out pleadings, because of its far reaching consequences.” 22. In the present case, the Plainti asserts that the Defendants’ Defence raises no defence in law. What constitutes a bona de triable issue was discussed by the Court in Olympic Escort International Co. Ltd & 2 Others v Parminder Singh Sandhu & Another [2009] eKLR where the Court of Appeal held as follows: “ It is trite that, a triable issue is not necessarily one that the defendant would ultimately succeed on. It need only be bona de”. 23. And in the case of Job Kiloch v Nation Media Group Ltd, Salaba Agencies Ltd & Michael Riorio [2015] eKLR, cited by the Plainti, the court stated as follows; “ What then is a defence that raises no bona de triable issue. A bona de triable issue is any matter raised by the Defendant that would require further interrogation by the court during a full trial. The Black’s Law Dictionary denes the term “triable” as, subject or liable to judicial examination and trial”. It therefore does not need to be an issue that would succeed, but just one that warrants further intervention by the Court. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18700/eng@2023-07-03 4

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24. The Plainti instituted this suit seeking to have the Defendants give vacant possession of the suit properties to it. The Plainti’s case is that it is the registered owner of the suit properties in which the Defendants reside on and that after the sale of the properties to third Parties, the Defendants led a claim against them being ELC 629 of 2016 which was heard on merits and dismissed on 14th December, 2021. 25. It is the Plainti’s case that pursuant to the dismissal order of the Defendants’ case, the Defendants have no rights to be on the suit property and should vacate and hand over possession of the same. 26. Vide the statement of Defence, the Defendant’s deny the assertions in the Plaint stating that they are lawfully on the suit property which is suitable for human occupation and the condemnation of the same was a ploy to have them evicted; that the Plainti deliberately frustrated their attempts to buy the suit premises and are intent on selling the same to third parties despite the fact that they have rst priority and that they have led an Appeal against the decision of the Court. 27. The Court has keenly considered the pleadings. As aforesaid, the Plainti is seeking to have the Defendants grant it vacant possession of the suit properties after the Judgement of the Court in ELC 629 of 2016 found that the Defendants had no rights over the suit property. 28. Considering the Defendants’ averments vis a vis the decision of the Court in ELC 629 of 2016, it is evident that the Defendants are rehashing their case and attempting to lure this Court into a reconsideration of issues already decided by a competent Court. Indeed, the Court in ELC 629 of 2016 found, inter-alia, that no evidence had been adduced either authorizing the Defendants’ continual stay on the suit property, or showing any entitlement to the suit property by the Defendant. 29. As to the pendency of the Appeal, the Court does not agree with the Defendants’ position that an Appeal deprives a decision of its nality. On the contrary, a decision remains nal until it is overturned by an order of the superior Court and it is with this in mind that the law provides for a stay pending appeal. 30. In the end, the Court is satised that the Defence raises no triable issues and the same is for dismissal. 31. The law with respect to summary judgements is found under Order 36, Rule 1 of the Civil Procedure Rules which provides as follows: 1) 2) In all suits where a plainti seeks judgment for (a) a liquidated demand with or without interest; or (b) the recovery of land, with or without a claim for rent or mesne prots, by a landlord from a tenant whose term has expired or been determined by notice to quit or been forfeited for nonpayment of rent or for breach of covenant, or against persons claiming under such tenant or against a trespasser, where the defendant has appeared but not led a defence the plainti may apply for judgment for the amount claimed, or part thereof, and interest, or for recovery of the land and rent or mesne prots. The application shall be supported by an adavit either of the plainti or of some other person who can swear positively to the facts verifying the cause of action and any amount claimed. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18700/eng@2023-07-03 5

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(3) 32. Sucient notice of the application shall be given to the defendant which notice shall in no case be less than seven days.” The Court of Appeal distilled the case law on summary judgment in Irene Wangui Gitonga v Samuel Ndungu Gitau [2018] eKLR as follows: “ The parameters for the exercise of jurisdiction under this provision have been crystalized by a long line of case law enunciated by the Court. In ICDC v Deber Enterprises Ltd [2006] IEA75, the Court stated-inter alia, as follows:“The purpose of the proceedings in an application for summary Judgment is to enable the plainti to obtain a quick Judgment where there is plainly no defence to the claim.” In Kenindia Assurance Co. Ltd versus Commercial Bank of Africa & 2 others Nairobi CA No. 11 of 2000, the Court stated that the law on summary procedure is now well settled and that this is a procedure resorted to in the clearest of cases. In Dhanjal Investments Ltd v Shabaha Investments Ltd Civil Appeal No. 232 of 1997 the Court went further and stated as follows on summary Judgment; “The law on summary Judgment procedures has been settled for many years now. It was held as early as in 1952 in the case of Kandanlal Restaurant v Devshi & Company [1952] EACA77 and followed by the Court of Appeal for Eastern Africa in the case of Sonza Figuerido & Company Ltd v Mooring Hotel Ltd [1929] E.A 424, that if the defendant shows a - bona-de-triable issue, he must be allowed to defend without conditions…..” As to what constitutes a triable issue, the Court in Kenya Trade Combine Ltd versus Shah Civil Appeal No. 193 of 1991, had this to say: “... all a defendant is supposed to show is that a defence on record raises triable issues which ought to go for trial. We should hasten to add that in this respect a defence which raises triable issues does not mean a defence that must succeed. The defendant is at liberty to show, by whatever means he chooses whether by defence, oral evidence, adavits or otherwise that his defence raises bonade triable issues. Further in Dedan King’ang’i Thiongo v Mbai Gatune Civil Appeal No. 292 of 2000 and Bangue Indosuez versus DJ Lowe & Co. Ltd Civil Appeal No. 79 of 2002, the Court was categorical that where bona-de- triable issues have been disclosed, the Court has no discretion to exercise in regard to the defendant’s right to defend the suit. Lastly, in D.T. Dobie & Co. Ltd v Muchina & another [1982] KLR 1, it was stated inter alia, that a pleading which does not disclose any reasonable cause of action or defence ought to be dismissed. Likewise, 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 by way of an amendment.” 33. Having found that the Defence raises no reasonable defence in law, and the Plainti’s claim being for recovery of houses as a landlord from tenants whose terms have expired or been determined by notice to quit or been forfeited for non-payment of rent and for breach of covenant, the Court nds the prayer for Summary Judgement to be merited. 34. For those reasons, the court nds the application dated 21st June, 2022 to be merited. Consequently, the application is allowed as follows: a) The Defendants’ Defence be and is hereby struck out. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18700/eng@2023-07-03 6

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b) Summary Judgement as prayed in the Plaint be and is hereby entered. c) That costs of the application to be borne by Defendants. DATED, SIGNED AND DELIVERED VIRTUALLY IN NAIROBI THIS 3RD DAY OF JULY, 2023 O. A. ANGOTE JUDGE In the presence of; Ms Mathenge for Plainti/Applicant Mr. Arori for Defendants Court Assistant - Tracy https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18700/eng@2023-07-03 7

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