REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI HCCA/E515/2021 GLORIA MAUNCHO ONYAMBU …………………………… APPELLANT VERSUS TIM LIKO T/A LIKO & ANAM ADVOCATES …………….. RESPONDENT (Being an appeal from the orders of the Chief Magistrates Court at Nairobi Hon. M.W. Murage in Milimani Civil Suit No. E676 of 2021) JUDGMENT Background 1. The Appellant, was the Plaintiff before the lower court where she sued the Respondent seeking refund and/or release of Kshs. 7,425,000, being the proceeds of sale of property known as L.R. No. 29507, allegedly unlawfully withheld by the Respondent. 2. The Appellant’s case was that the Respondent’s actions were unlawful, irregular, and unethical thus amounting to a breach of professional duties. 3. The Respondent, who had acted as the Appellant’s advocate in the said property sales transaction, filed a defence in which he contended Appellant’s parents owed him money from earlier dealings thus entitling him to retain HCCA E515 OF 2021- JUDGEMENT 1
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the funds. The Respondent also filed an application seeking to strike out the Appellant’s entire suit. 4. The Appellant filed Grounds of Opposition in response to the Respondent’s said application. 5. In a ruling delivered on 9 th August 2021, the lower court struck out the Appellant’s entire suit thereby precipitating the filing of this appeal. The Appeal 6. The appeal arises from the trial court’s decision to strike out the Appellant’s Grounds of Opposition filed in response to an application by the Respondent seeking to strike out the Appellant’s entire suit. The Appellant contends that the trial court’s action, taken suo moto and without any formal application, denied her the right to be heard and contravened both procedural and constitutional principles of justice. 7. The appeal is premised on five principal grounds, namely: a) That the trial magistrate erred in finding that the Appellant’s response was filed out of time and that the reasons given were insufficient or inadequate. b) That the magistrate erred by striking out the Appellant’s response suo moto without a formal application before the court. c) That there was misapplication of the Civil Procedure Rules, specifically, failure to follow HCCA E515 OF 2021- JUDGEMENT 2
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Order 2 Rule 15 governing striking out of pleadings. d) That the trial court violated Article 159(2)(d) of the Constitution by placing undue emphasis on procedural technicalities rather than substantive justice. e) That the Appellant was denied the right to be heard contrary to Article 50(1) of the Constitution and the principles of natural justice. The Appellant’s Submissions 8. The Appellant submitted that under Order 2 Rule 15(1) of the Civil Procedure Rules, a pleading may only be struck out where it discloses no reasonable cause of action, is scandalous, frivolous, or vexatious, or otherwise an abuse of the court process. The Appellant observed that sub-rule (2) provides that any such striking out must be based on a formal application stating the grounds relied upon and added that the present matter, no such application was filed as the trial magistrate acted suo moto, contrary to law and established procedure. 9. The Appellant relied on the decision by the Court of Appeal in Kenya Commercial Bank Ltd vs. Suntra Investment Bank Ltd [2015] eKLR, where it was held that: “Striking out a pleading is a draconian remedy that should be exercised sparingly and only in accordance with the law.” HCCA E515 OF 2021- JUDGEMENT 3
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10. She argued that the absence of a formal application rendered the magistrate’s action irregular and unlawful. 11. On violation of the right to be heard, the Appellant emphasized that the said right is a fundamental tenet of justice protected under Article 50(1) of the Constitution. According to the Appellant, striking out a party’s pleading without notice or opportunity to respond is a breach of this right. 12. It was submitted that the Respondent’s application sought to strike out the Appellant’s entire suit; hence, denying the Appellant a chance to respond effectively, resulted in dismissal without a hearing on merit. Reliance was placed on Peters vs. Sunday Post Ltd [1958] EA 424, where the court observed that: “Parties must not be condemned unheard, and justice must not only be done but must be seen to be done.” 13. Further reliance was placed on Republic vs. AntiCounterfeit Agency & 3 Others Ex Parte Surgipharm Ltd [2014] eKLR, in which the court emphasized that: “Any decision that impacts a party’s rights must be preceded by affording that party an opportunity to be heard.” 14. The Appellant submitted that Article 159(2)(d) requires courts to administer justice without undue regard to procedural technicalities. It was the Appellant’s case that by striking out her response without a hearing, the magistrate’s decision not only violated procedural law but HCCA E515 OF 2021- JUDGEMENT 4
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also contravened substantive justice principles. For this argument, reference was made to the decision in Nicholas Kiptoo Arap Korir Salat vs. IEBC & 7 Others [2014] eKLR, where it was held that: “Procedural technicalities should not be used to defeat the cause of justice; courts must be guided by the spirit and letter of Article 159.” 15. The Respondent had not filed any submissions to the appeal as at the time this court was preparing the judgment. 16. The Appeal will therefore be determined based on the contents of the record and the Appellant’s submissions. Issues for Determination 17. From the grounds of appeal, the record, and submissions, I find that the following issues emerge for determination: a) Whether the trial court erred in striking out the Appellant’s Grounds of Opposition suo moto and without a formal application. b) Whether the trial magistrate misapplied the provisions of Order 2 Rule 15 of the Civil Procedure Rules. c) Whether the Appellant’s right to be heard under Article 50(1) of the Constitution and the principles of natural justice was violated. d) Whether the magistrate failed to give effect to Article 159(2)(d) of the Constitution by placing undue reliance on procedural technicalities. HCCA E515 OF 2021- JUDGEMENT 5
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e) Whether the appeal has merit and, if so, the appropriate remedies. Analysis and Determination Striking out the Appellant’s Grounds of Opposition 18. The record reflects that the Respondent had filed an application seeking to strike out the entire suit. The Appellant filed Grounds of Opposition to the Respondent’s said application. The trial magistrate, however, struck out the Appellant’s Grounds of Opposition and the entire suit, suo moto, without any formal application before her. 19. Order 2 Rule 15(2) of the Civil Procedure Rules provides that: No evidence shall be admissible on an application under sub-rule (1)(a) but the application shall state concisely the grounds on which it is made. 20. This provision clearly contemplates the existence of a formal application, which must set out the grounds relied on. Courts have repeatedly cautioned against invoking drastic powers without a proper application. In Kenya Commercial Bank Ltd vs. Suntra Investment Bank Ltd [2015] eKLR, the Court of Appeal held that: “Striking out a pleading is a draconian remedy that must be invoked only on the clearest of cases and strictly in accordance with the law.” 21. In the present case, there was no application asking the court to strike out the Grounds of Opposition. I therefore HCCA E515 OF 2021- JUDGEMENT 6
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find that the trial magistrate acted without jurisdiction to invoke Order 2 Rule 15 suo moto. 22. Courts have emphasized that judicial intervention must be anchored on pleadings. In Odd Jobs vs. Mubia [1970] EA 476, the Court stated that: “A court may only pronounce judgment on the issues arising from the pleadings or framed by the parties.” 23. I find that the trial magistrate’s decision fell outside the framework adopted in the above cited cases.. Misapplication of Order 2 Rule 15 24. Order 2 Rule 15 governs striking out of pleadings. The record shows that the Appellant responded to an application through Grounds of Opposition which is a permissible mode of response under Order 51 Rule 14(1). Grounds of Opposition are not required to be filed within an inflexible timeline which means that even late filing does not automatically lead to striking out unless prejudice is demonstrated. 25. Even assuming, for argument’s sake, that the Grounds of Opposition were filed out of time, I find that the proper remedy would have been a formal objection raised by the Respondent, not unilateral action by the court. It is my finding that the trial court misapplied Order 2 Rule 15. The Right to be Heard HCCA E515 OF 2021- JUDGEMENT 7
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26. The right to be heard is a fundamental right that is protected under Article 50(1) of the Constitution which stipulates that: Every person has the right to have any dispute resolved in a fair and public hearing… 27. The principle of audi alteram partem, that a party should not be condemned unheard, is foundational. In Peters vs. Sunday Post Ltd (supra) it was held that: “The right to be heard is a basic tenet of justice; justice must not only be done but must be seen to be done.” 28. Similarly, in Republic vs. Anti-Counterfeit Agency & Others Ex Parte Surgipharm Ltd (supra) the Court stated: “Any decision that adversely affects the rights of a party must be preceded by an opportunity for that party to be heard.” 29. In the present case, I find that by striking out the Appellant’s response without notice or invitation to address the court on the issue, the magistrate breached this constitutional and procedural right. That action directly prejudiced the Appellant because her response to an application that sought to strike out her entire suit was eliminated without a hearing. Article 159(2)(d) HCCA E515 OF 2021- JUDGEMENT 8
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30. Article 159(2)(d) of the Constitution directs courts to administer justice without undue regard to procedural technicalities. 31. In Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others (supra) the Supreme Court stated that: “Deviations from procedural rules which do not go to the jurisdiction of the court or to the core of the dispute should not invalidate proceedings. Courts must always be guided by the spirit and the letter of Article 159.” 32. In this case, I find that the Grounds of Opposition filed by the Appellant were not scandalous, frivolous, vexatious, or otherwise an abuse of process as they merely responded to the Respondent’s motion. As I have already stated in this judgment, even if the Grounds of Opposition were filed out of time, that was a curable defect. It is regrettable that the trial magistrate’s move leaned heavily on technicality rather than substantive justice. Whether the appeal has merit 33. For the reasons that I have stated in this judgment, I find that the striking out of the Grounds of Opposition was irregular, unlawful, procedurally improper, and unconstitutional. The appeal therefore has merit. Disposition 34. Having considered the appeal, the record, and the applicable law, the Court finds that the appeal is well HCCA E515 OF 2021- JUDGEMENT 9
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founded. Accordingly, the Court makes the following orders: a) The appeal is allowed in its entirety. b) The ruling of the Chief Magistrate’s Court at Milimani in Civil Suit No. E676 of 2021 delivered on 9th August 2021 is hereby set aside. c) The Appellant’s Grounds of Opposition are reinstated into the record as duly filed. d) The application by the Respondent dated 14th June 2021 shall be heard and determined on the merits before a different magistrate other than Hon. M.W. Murage. e) Costs of this appeal are awarded to the Appellant. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 20TH DAY OF NOVEMBER, 2025. HON. W. A. OKWANY JUDGE 20/11/2025 FOR APPELLANT ……………. FOR THE RESPONDENT ………… COURT ASSISTANT Ubah HCCA E515 OF 2021- JUDGEMENT 10
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