Geoffrey Orao Obura T/A Obura Mbeche & Company Advocates v Kenya Utalii College

5. The applicant contended that the defendant’s defence is a sham, consists of mere denials and does not raise a triable issue for this court’s consideration. He also contended that the claim is for a liquidated amount admitted by the respondent in its letter dated 8.7.2019. 6. The applicant urged the court to grant the orders sought. He relied on Cooperative Bank of Kenya Ltd v Koinange [2004] KEHC 1288 (KLR). Response 7. The defendant opposed the application through a replying affidavit sworn by its chief executive officer (CEO) Hashim Mohamed on 1.4.2021 and written submissions dated 21.3.2025. 8. The deponent admitted that the respondent instructed the applicant to undertake recovery proceedings of Kshs. 17,046,822.50/- and was paid Kshs. 1,100,000/- as legal fees. However, he denied that the respondent owes the applicant Kshs. 5,000,000/-. 9. The deponent admitted that the respondent was awarded Kshs. 13,293,200.65/-. He contended that the award should be the subject matter of the legal fee. 10. It was further deposed that the applicant misrepresented to the respondent that the legal fee payable under the Advocates Remuneration Order was Kshs. 6,450,707/-. 11. The respondent argued that the applicant should tax his fee note as presented to it. It also argued that the alleged letter from the CEO was based on the understanding that the final fee note was in strict compliance with the Advocates Remuneration Order, which was not the case. That the said letter was not a binding contract the same having been grounded on misrepresentation. 12. The respondent relied on Article 201 (d) of the Constitution on the principles of public finance which include the prudent and responsible use of state resources. 13. Therefore, the respondent asserted that the defence raises triable issues as to whether there was misrepresentation and if there was a binding agreement between the parties. 14. The respondent submitted that the applicant has not met the threshold for grant of the orders sought. 15. The respondent relied on: 1. Jubilee Insurance Company Limited v Grace Anyona Mbinda [2016] eKLR 2. National Social Security Fund Board of Trustees v Protection Custody Limited (Civil Appeal E311 of 2021) [2024] KEHC 2549 (KLR) (12 March 2024) (Judgment) 3. Wenlock v Moloney [1965] 2 All ER 871 p. 874 Analysis and Determination 16. The issue before the court is whether the applicant has satisfied the conditions for the striking out of the defence. 17. The court’s power to strike out pleadings is discretionary. Order 2 Rule 15 of the Civil Procedure Rules. 18. Exercise of the discretion must be based on principle and not on a whim. The court also considers the unique circumstances of the case. 19. The principles for consideration in determining whether to strike out pleadings are well established. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19244/eng@2025-12-18 2

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20. “The power to strike out pleadings must be sparingly exercised. It can only be exercised in clearest of cases.” Ramji Megji Gudka Ltd v Alfred Morfat Omundi Michira & 2 others [2005] eKLR 21. “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.” DT Dobie & Company (Kenya) Ltd. v. Muchina [1982] KLR 1 22. In this case, the applicant seeks an order to strike out the defence. The main grounds are that the defence is a sham, consists of mere denials and does not raise a triable issue for this court’s consideration. He also contended that the claim is for a liquidated amount admitted by the respondent in its letter dated 8.7.2019. 23. On the other hand, the respondent argued that the letter of 8.7.2019 was tainted by the applicant’s misrepresentation that the legal fees of Kshs. 6,450,707/- was based on the Advocate’s Remuneration Order. The respondent also argued that the applicant’s fees ought to be based on the amount awarded Kshs. 13,293,200.65/- following the consent, not the initial amount of 17,046,822.50/- claimed. 24. In reply, the applicant asserted that in the underlying suit, the Kenya School of Monetary Studies counter-claimed for Kshs. 217.918,382. He also asserted that he successfully handled the brief leading to the settlement by consent resulting in payment of Kshs. 13,293,200.65/- to the respondent after the two parties had taken accounts and offset other outstandings due to each other. 25. The applicant highlighted that the letter of 8.7.2019 was issued following the issuance of its bill of costs dated 16th May 2019 and after the respondent had challenged certain billed items. He therefore argued that the respondent’s plea that the bill be taxed yet it was compromised on the strength of the parties’ mutual review is a blatant display of ill will. He added that the respondent is estopped from reneging the agreement evidenced by the letter of 8.7.2019. 26. In Job Kilach v Nation Media Group Ltd, Salaba Agencies Ltd & Michael Rono (2015) eKLR, the Court of Appeal observed that: “ Before the grant of summary judgment, the court must satisfy itself that there are no triable issues raised by the defendant, either in his statement of defence or in the affidavit in opposition to the application for summary judgment or in any other manner. What then is a defence that raises no bona fide triable issue? A bona fide 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 defines 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.” 27. From the above authorities and from a study of the plaint and the defence, it is my considered view that the respondent raises triable issues. Therefore, the court finds that the applicant has not met the conditions for the orders sought. Disposal 28. The application dated 23.3.3021 is dismissed with no order as to costs. DATED, SIGNED AND DELIVERED AT NAIROBI THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 18TH DAY OF DECEMBER, 2025 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19244/eng@2025-12-18 3

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---------------F. GIKONYO M JUDGE In the presence of: Kobia for Kiunga for defendant No appearance by Plaintiff CA Kinyua https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19244/eng@2025-12-18 4

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