Mbuti & 5 others v Malili Ranch Limited & 2 others

required period. The amended Plaint is an abuse of the process of the court. The amended Plaint will prejudice, embarrass and delay the fair trial of the action. 3. The Respondent stated that the Plaintis were granted leave to amend their plaint in April 2019 but due to negligence and omission on the part of their advocate the said amended plaint was not led or served within 14 days as prescribed under Order 8 rule 6 of the Civil Procedure Rules. The Plainti had entrusted the conduct of the matter to their former advocates in good faith and had no reason to suspect non compliance with the directions of the court until much later. That the Respondents took immediate corrective measures by instructing new advocates and ensuring the amended plaint was led and served. 4. This court has considered the application and the submissions therein. Order 2 rule 15 of the Civil Procedure Rules which provides as follows; At any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that— 5. a) it discloses no reasonable cause of action or defence in law; or 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, and may order the suit to be stayed or dismissed or judgment to be entered accordingly, as the case may be.” Order 2 Rule 15(2) of the Civil Procedure Rules provides that no evidence is admissible on an application under sub rule (1) (a) and therefore, it should be evident from the pleadings sought to be struck out that no reasonable cause of action has been disclosed without reference to further evidence. The court’s power to strike out pleadings therefore, is to be exercised sparingly and cautiously. In the case of DT Dobie & Company (Kenya) Ltd. vs. Muchina (1982) KLR 1 the court stated that; " 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.” 6. The main principle to be considered in an application for striking out a pleading therefore is, whether triable issues have been raised. The Plaintis/Respondents stated that they had entrusted the conduct of the matter to their former advocates in good faith and had no reason to suspect non-compliance with the directions of the court until much later. That the Plaintis/Respondents took immediate corrective measures by instructing new advocates and ensuring the amended plaint was led and served. 7. In the case of Utalii Transport Co. Ltd and 3 Others vs NIC Bank and Another (2014) eKLR, the court held that; " It is the primary duty of the plaintis to take steps to progress their case since they are the ones who dragged the defendant to court.” 33. It is also the duty of the parties to assist the court to adjudicate on the matters brought before it expeditiously as was held in Gideon Sitelu Konchella vs Daima Bank Limited (2013) eKLR where the court while citing the case of Mobil Kitale Service Limited vs Mobil Oil Kenya Limited, held that:- https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18400/eng@2025-12-18 2

page 2 of 4

"It is in the interest of justice that litigation must be conducted expeditiously and eciently so that injustice by delay would be a thing of the past. Justice would be better served if we dispose of matters expeditiously ….the overriding objection of this Act and Rules made hereunder is to facilitate the just, expeditious, proportionate and aordable resolution of the civil disputes governed by the Act.” 8. Be that as it may, Section 1A of the Civil Procedure Act provides for the overriding objective of the Civil Procedure Act and the rules made thereunder and provides as follows: 1A (1) The overriding objective of this Act and the rules made hereunder is to facilitate the just, expeditious, proportionate and aordable resolution of the civil disputes governed by the Act. (2) The Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give eect to the overriding objective specied in subsection (1). (3) A party to civil proceedings or an advocate for such a party is under a duty to assist the Court to further the overriding objective of the Act and, to that eect, to participate in the processes of the Court and to comply with the directions and orders of the Court. Section 1B of the same Act, on the other hand provides for the duty of court and states: (1) 9. For the purpose of furthering the overriding objective specied in section 1A, the Court shall handle all matters presented before it for the purpose of attaining the following aims — (a) the just determination of the proceedings; (b) the ecient disposal of the business of the Court; (c) the ecient use of the available judicial and administrative resources; (d) the timely disposal of the proceedings, and all other proceedings in the Court, at a cost aordable by the respective parties; and (e) the use of suitable technology. The Respondents have explained what led to the failure to le the amended plaint on time was due to the negligence of the previous counsel on record. I nd that this is not a case where there has been indolence on the part of the Respondents. This being a land matter, I nd this a valid reason in the circumstances. In the case of Martha Wangari Karua vs IEBC Nyeri Civil Appeal No. 1 of 2017 the Court of Appeal held as follows; " The rules of Natural Justice require that the court must not necessarily drive any litigant from the seat of justice without a hearing, however weak his or her case may be..” 10. Judicial precedent has established that the jurisdiction to strike out any pleadings or suit is one to be exercised with utmost caution and sparingly. I order that the amended plaint be deem to be properly led and served. I nd that the application is not merited and I dismiss it. Costs to be in the cause. 11. It is so ordered. DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 18TH DAY OF DECEMBER, 2025. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18400/eng@2025-12-18 3

page 3 of 4

........................................................ N. A. MATHEKA JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18400/eng@2025-12-18 4

page 4 of 4