Republic v The Chief Magistrate Court, Milimani Commercial Law Court & another; Ex parte Daniel Karwe Muikia

3. The grounds of the Application are set out on the face thereof where the 1st Interested party contends that this Court granted the Ex-parte Applicant leave to file its substantive motion for Judicial Review on 25 th July 2024 within 21 days of the said date. 4. The 1st interested party contends that the ex-parte applicant filed the substantive motion for dated 12th August 2024 on 30th January 2025 at 11:06:41 way outside the timeline granted by the Court. It is the 1 st interested party’s contention that the said Application was filed without leave of this Court and therefore the same should be struck out. 5. The subject application that the 1st interested party seeks to have struck out is a substantive Motion. 6. In response to the Application through a Replying Affidavit sworn by Daniel Karwe, on 19 September 2025, the ex-parte Applicant contends that his former advocate had advised him that he filed the Notice of Motion Application on 12 August 2024 but the said lawyer failed to do so. He noticed this on 30 January 2025 when this Court observed that the said Application was not in the Court’s tracing sytem and consequently he avers that the court granted his advocate 15 minutes to upload the same, which he did. 7. The ex-parte applicant contends that the Application was already ready but had not been filed on account of inadvertent mistake not attributed to him but to his former advocate’s omission. THIKA ELCLA ELC JR E1B OF 2024 (RULING) Page 2

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Analysis and determination 8. The court has considered the application, the response to the application, and the grounds set out in the preliminary objection. The court has also considered the parties’ submissions and the legal frameworks and the jurisprudence relevant to the issues that fall for determination in the application. 9. The principal issue for determination is: whether the failure by the Ex-parte Applicant to file the substantive Notice of Motion within the twenty-one (21) days stipulated in the Court's Ruling of 25th July 2024 warrants the striking out of the substantive Motion. 10. There is no dispute that this Court, in its Ruling delivered on 25 July 2024, granted the Ex-parte Applicant leave to institute judicial review proceedings. The leave was granted on the express condition that the substantive Notice of Motion be filed and served within twenty-one (21) days, failing which the leave and the stay orders granted by the Court would lapse. 11. After delivery of the Ruling, the Court directed that the matter be mentioned before the Deputy Registrar for directions on 13 September THIKA ELCLA ELC JR E1B OF 2024 (RULING) Page 3

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2024 but all parties were absent on the said date and the matter was given a further mention date of 4th November 2024. 12. On 4th September 2024, Mr. Juma, being on record for the ex-parte Applicant was present together with Advocates for the 1 st & 2nd Respondent and that of the interested party. It is on record that the Court directed that the substantive motion for review together with the Application dated 30 May 2024 in ELCLC No. E088 of 2024 be heard on 30 January 2025. 13. On 30 January 2025, Mr. Juma informed court that they already filed the substantive motion and had served them upon the Respondents and Interested parties. It is on this date that it was noted that the said substantive motion was not in the Court’s Tracking System necessitating the file to be placed aside for Counsel to confirm. Later on, Mr. Juma informed Court that he filed the Application on 12 August 2024. However, it was noted that the same was not in the Court’s tracking system. 14. Order 2 rule 15 of the civil procure rules provides for striking out pleadings [Order 2, rule 15] 1. At any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that— a. it discloses no reasonable cause of action or defence in law; or THIKA ELCLA ELC JR E1B OF 2024 (RULING) Page 4

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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.( 2. No evidence shall be admissible on an application under subrule (1)(a) but the application shall state concisely the grounds on which it is made. 3. So far as applicable this rule shall apply to an originating summons and a petition. 15. The Ex-parte Applicant, however, has offered an explanation for the delay. His case is that the substantive Motion had been prepared and that he was informed by his former advocate that the same had been filed on 12 August 2024. It was only on 30 January 2025, when the matter came before the Court, that it became apparent that the Application was not reflected in the Court's electronic tracking system. Counsel was thereafter allowed time to confirm the position, following which the substantive Motion was uploaded. 16. I am mindful that the filing of pleadings and compliance with timelines imposed by the Court are not mere technicalities. Court orders must be complied with, and parties cannot simply disregard THIKA ELCLA ELC JR E1B OF 2024 (RULING) Page 5

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timelines prescribed by the Court. Equally, however, the Court is required to exercise its discretion judiciously and to consider the circumstances giving rise to non-compliance before imposing the ultimate sanction of terminating proceedings. 17. The power to strike out pleadings under Order 2 Rule 15 of the Civil Procedure Rules is a discretionary power. It is also a drastic remedy which ought to be exercised sparingly and only in the clearest of cases. In D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & Another [1980] eKLR, the Court of Appeal underscored the need for caution in striking out proceedings and stated that a suit ought not to be summarily dismissed where it discloses a reasonable cause of action and can properly proceed to hearing. 18. The same approach was adopted in Co-operative Merchant Bank Ltd v George Fredrick Wekesa [1997] eKLR, where the Court recognized that the power to strike out should be exercised cautiously and with regard to the circumstances of the particular case. 19. It is evident that a suit can be struck out if the said pleading/ suit is frivolous, vexatious, or an abuse of the court process. Further, if a suit discloses no reasonable cause of action or Defence, or being prejudicial to a fair trial, it can be struck out. THIKA ELCLA ELC JR E1B OF 2024 (RULING) Page 6

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20. However, this is a drastic remedy that is exercised sparingly, and only in clear and hopeless cases, which cannot be cured through amendments. Such grounds for striking out are; where the suit is an abuse of the court process or goes against the law. 21. Though striking out of suit is drastic, and should be used sparingly, it is still an available remedy in clearest of cases, as it is the duty of the court to uphold the Overriding Objective of the Act, which is to facilitate just, expeditious, proportionate and affordable resolutions of disputes before it. 22. In the present case, I am not persuaded that the delay, though undoubtedly substantial, demonstrates an intention by the Ex-parte Applicant to abuse the process of the Court. The material before the Court indicates that the substantive Motion had been prepared, that counsel represented to the Court on 30 January 2025 that the Motion had been filed and served, and that the issue which arose was its absence from the electronic Court tracking system. 23. Of significance is also the subsequent conduct of the proceedings. Following the Ruling of 25 July 2024, the matter remained before the Court. The parties appeared before the Court and directions were issued. On 4 September 2024, the matter was again before the Court and was subsequently fixed for hearing on 30 January 2025. The Court therefore did not, during that period, treat the matter as having come THIKA ELCLA ELC JR E1B OF 2024 (RULING) Page 7

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to an end or as having been conclusively terminated by the expiry of the twenty-one-day period. 24. It is also material that, when the matter came before the Court on 30 January 2025, counsel for the Ex-parte Applicant did not seek to introduce an entirely new cause of action. Rather, he informed the Court that the substantive Motion had already been filed and served. When the Court's electronic record did not immediately reflect the filing, counsel was given an opportunity to verify the position and the Motion was subsequently uploaded. 25. I am equally alive to the fact that the delay was not insignificant. The Ex-parte Applicant ought to have moved the Court promptly upon discovering that the substantive Motion had not been successfully filed. The explanation offered does not therefore excuse the default. It nevertheless provides a basis upon which the Court can exercise its discretion in determining the appropriate consequence of that default. 26. The Court is further guided by Article 159(2)(d) of the Constitution, which requires courts to administer justice without undue regard to procedural technicalities. This provision does not absolve parties from complying with court orders or procedural requirements. It does, however, require the Court to distinguish between procedural defaults that go to the root of a matter and those which can, in the THIKA ELCLA ELC JR E1B OF 2024 (RULING) Page 8

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circumstances of a particular case, be regularized without occasioning prejudice to the opposing parties or undermining the administration of justice. 27. The 1st Interested Party has not demonstrated that allowing the substantive Motion to proceed would occasion prejudice that cannot adequately be addressed through appropriate directions as to the further conduct of the proceedings. Neither has the 1st Interested Party demonstrated that the filing of the substantive Motion was intended to circumvent the judicial process or otherwise constituted an abuse of the Court's process. 28. The Court must also have regard to the overriding objective of the Civil Procedure Act, namely the just, expeditious, proportionate and affordable resolution of disputes. The striking out of the substantive Motion would bring the proceedings to an end on account of a procedural default without the substantive questions raised by the Exparte Applicant having been considered. While this is not, of itself, sufficient reason to excuse non-compliance, it is a relevant consideration when determining whether the drastic remedy of striking out is proportionate in the circumstances. 29. I therefore find that, although the Ex-parte Applicant did not strictly comply with the Court's direction of 25 July 2024, the circumstances THIKA ELCLA ELC JR E1B OF 2024 (RULING) Page 9

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disclosed in the record do not warrant the striking out of the substantive Motion as an abuse of the process of the Court. 30. The Court is satisfied that the interests of justice would be better served by regularizing the position and allowing the substantive Motion to proceed, subject to appropriate directions. The Court will, however, not overlook the period of non-compliance. The Ex-parte Applicant's conduct in failing to ensure that the substantive Motion was duly filed within the time granted by the Court remains a matter that the Court takes into account in determining the issue of costs. Disposition i. Consequently, the Application by the 1 st Interested Party dated 29 April 2025 is hereby dismissed. ii. The substantive Notice of Motion dated 12 August 2024 shall remain on record and shall proceed for hearing. iii. The Ex-parte Applicant is directed to ensure that the substantive Motion, documents, are together properly with reflected all in supporting the Court's electronic filing and tracking system and that the same is duly served upon all parties who are entitled to service, if this has not already been done. iv. The cost of this Application shall be in the cause THIKA ELCLA ELC JR E1B OF 2024 (RULING) Page 10

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Dated, Signed and Delivered, virtually at Malindi this 30 th day of September 2026. …………….………….. J. M. ONYANGO JUDGE In the presence of: Mr. Mwaniki for the Applicant Mr. Kamande for the 3rd Respondent Mr. Gatumuta for the Interested Party Mr. Ndungu for the 2n Interested Party Court Assistant: Happy THIKA ELCLA ELC JR E1B OF 2024 (RULING) Page 11

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