Devshibhai & Sons Limited v Muhugu Limited & 1 other

4. The 2nd Defendant maintains that it was not a party to the sale or construction agreements between the Plaintiff and the 1st Defendant and that there exists no contractual or legal relationship giving rise to a cause of action. It argues that its inclusion in the suit is a misjoinder and relies on Order 2, rule 15(1)(a) of the Civil Procedure Rules to seek striking out. The 2nd Defendant’s Case 5. The Applicant submits that the Plaint fails to disclose a reasonable cause of action against it. It points out that the Court, in its ruling of 29th April, 2024, had already declined to issue an injunction against the 2nd Defendant on the basis that there was no privity of contract between it and the Plaintiff and that the sale of the suit properties occurred without the Bank’s consent. 6. Citing D.T. Dobie & Co (Kenya) Ltd v Joseph Mbaria Muchina & Another [1980] eKLR, the Applicant contends that the Court has power to strike out a pleading that discloses no cause of action and that the present suit falls within that category. It further relies on Simion Ogada Andiwo v Safaricom Plc & 15 others [2021] eKLR and Solomon Kipchoke Kipsisei & Another v Lake Victoria North Water Services Board & 3 others [2019] eKLR to support the principle that a party against whom no specific allegation or relief is pleaded should not be burdened to remain in the suit. The Plaintiffi ’s Response 7. The Plaintiff submits that the application is fatally defective and misconceived, as it is supported by an affidavit contrary to Order 2, rule 15(2) of the Civil Procedure Rules, which expressly prohibits the use of affidavit evidence where the ground relied upon is that the pleading discloses no reasonable cause of action. 8. Reliance is placed on Olympic Escort International Co. Ltd & 2 Others v Parminder Singh Sandhu & Another [2009] eKLR and Crescent Construction Co. Ltd v Delphis Bank Ltd [2007] eKLR, both decisions of the Court of Appeal, which hold that in determining whether a pleading discloses a cause of action, the Court must confine itself to the Plaint alone, without recourse to extraneous evidence. 9. The Plaintiff further contends that the issues raised in the Plaint, particularly concerning estoppel and unjust enrichment require factual interrogation at trial and cannot be determined summarily. It submits that the fact that the earlier injunction was declined does not extinguish the substantive cause of action. Issues for Determination 10. From the pleadings and submissions, the following issues arise for determination:a. Whether the 2nd Defendant’s application is competent in light of Order 2, rule 15(2); and b. Whether the Plaint discloses a reasonable cause of action against the 2nd Defendant. Analysis and determination Competency of the Application 11. Order 2, rule 15(2) of the Civil Procedure Rules provides in clear terms that ‘No evidence shall be admissible on an application under sub-rule (1)(a).’ The prohibition is mandatory. An application founded solely on the ground that a pleading discloses no reasonable cause of action must not be supported by an affidavit. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/15566/eng@2025-10-30 2

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12. The 2nd Defendant’s application invokes Order 2, rule 15(1)(a) yet is accompanied by a supporting affidavit. In Olympic Escort International Co. Ltd (supra), the Court of Appeal held that such a combination renders the application defective and liable to be struck out in the following terms:“ Mr. Wamalwa reiterated in his submissions before us that it was improper to invoke Order 6 r 13 (1) (a) when there was affidavit evidence on record which the superior court analysed in arriving at its decision. Mr. Sevany on the other hand found no impropriety in combining the two prayers since it was expressly stated in the application that the only basis for seeking the order for striking out was because the defence was a bare denial. We think for our part that it was inappropriate to combine the two prayers, one of which requires evidence before a decision is made and one that does not. There was affidavit evidence on record and it was in fact considered by the learned judge. It matters not therefore that the Applicant had stated that the affidavits should not be considered. As the prayer sought under order 6 rule 13 (1) (a) was in contravention of sub rule (2) of that order, it was not for consideration and we would have similarly struck out the application on that score."(Emphasis mine) 13. A similar position was reaffirmed in Crescent Construction Co. Ltd (supra), where the court held the following:“ Be that as it may, in all cases brought under Order VI Rule 13(1) (a), the court is obliged in law to look at no evidence i.e. no affidavit or any evidence from the bar in considering whether or not a Plaint or a pleading raises a cause of action. The court must look at the pleadings only and not go beyond the pleadings. The predecessor to this Court stated in the case of Jevaj Shariff & Co. v Chotail Pharmacy Stores (1960) EA 374 as follows: “The question whether a Plaint discloses a cause of action must be determined upon a perusal of the Plaint alone, together with anything attached so as to form part of it, and upon the assumption that any express or implied allegations of fact in it are true.” This is proper because once the court incorporates evidence in its consideration of the pleading at this stage, then the aim of the rule which is to dispose of unnecessary and baseless litigation speedily will be defeated.” 14. The rationale for the above, is because prejudice must be guarded against, and it will be very difficult for the Court to consider the other grounds based on the evidence produced, and then after having reviewed the same, go on to disabuse itself of that material when considering the ground of disclosing no reasonable cause of action under rule 15 (1) (a). 15. Accordingly, I find that by introducing affidavit evidence, the 2nd Defendant’s application offends the mandatory provisions of Order 2, rule 15(2) and is procedurally incompetent. 16. Having found the above, it would not be appropriate for me to consider the substantive issue of whether or not the pleadings disclose a reasonable cause of action. Conclusion 17. The Chamber Summons Application dated 9th July, 2024, is defective. The same is struck out with costs. DATED AND DELIVERED VIRTUALLY VIA MICROSOFT TEAMS THIS 30TH DAY OF OCTOBER, 2025 ALEEM VISRAM, FCIArb https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/15566/eng@2025-10-30 3

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JUDGE In the presence of; Court Assistant: Lispa .......... for Plaintiff .......... for 1st Defendant .......... for 2nd Defendant/Applicant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/15566/eng@2025-10-30 4

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