P. Mulwa, J. v Fredrick Orawo & 3 others

HCCOMM NO. 027 OF 2023 P. MULWA, J. is contended that while prayer (a) in the plaint is legally untenable and expressly in conflict with the Companies Act and principles of corporate governance, the main prayers (b), (c) and (d) cannot be granted in the absence of the 3 rd Defendant. And that therefore, the suit is frivolous, vexatious and an abuse of the court process, as it is barred by the doctrine of privity of contract. 3. The Plaintiff opposed the application through the replying affidavit sworn by Patrick Mweti Kailikia on 3 rd March 2026. He argues that upon the termination of the contract between the 3rd and the 2nd Defendants, the claim against the 3 rd Defendant which was primarily based on negligence could not be sustained. 4. The Plaintiff reiterates that the cause of action against the 1 st, 2nd and 4th Defendants is founded on negligence, fraud and breach of fiduciary duty, and the absence of the 3 rd Defendant does not affect their case. He urges the application be dismissed. Analysis and determination 5. The application was canvassed through written submissions. I have considered the application, the response tendered and the submissions. The sole issue for determination is whether this court should dismiss the suit against the 2 nd Defendant for lacking a cause of action. 6. The law governing the striking out of pleadings is Order 2 Rule 15 of the Civil Procedure Rules, which provides as follows: Page 2 of 6

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HCCOMM NO. 027 OF 2023 P. MULWA, J. 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 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 sub rule (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. 7. The above provisions give the court unfettered discretion to strike out pleadings that are frivolous, raises no cause of action and are a waste of the court’s time. 8. The Court of Appeal has defined the term cause of action in the case of DT Dobie & Co (K) Ltd vs Muchina, [1982] KLR, to mean: “…an action with some chance of success when allegations in the plaint only are considered. A cause of action will not be considered reasonable Page 3 of 6

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HCCOMM NO. 027 OF 2023 P. MULWA, J. if it does not state such facts as to support the claim/prayer...” 9. A reasonable cause of action is a valid legal basis for filing a lawsuit. It means that the Plaintiff has a legitimate claim supported by facts that, if proven true, would entitle them to a legal remedy. For a cause of action to be considered reasonable, the Plaintiff must demonstrate that a right has been infringed, that the Defendant is responsible for the infringement, and that harm or damage has been caused as a result of the Defendant's actions. 10. The 2nd Defendant has urged this court to strike out the plaint for failure to disclose a cause of action. The argument is that the Plaintiff, through his own acts and dealings mutilated his suit when he withdrew the claim against the 3 rd Defendant and that whatever was left does not disclose any reasonable or legitimate cause of action. 11. In the case of Crescent Construction Limited v Kenya Commercial Bank Limited [2019] eKLR, the Court of Appeal stated thus: “However, one thing remains clear, and that is that the power to strike out a pleading is a discretionary one. It is to be exercised with the greatest care and caution. This comes from the realization that the rules of natural justice require that the court must not drive away any litigant however weak his case may be from the seat of justice. This is a time-honored legal principle. At Page 4 of 6

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HCCOMM NO. 027 OF 2023 P. MULWA, J. the same time, it is unfair to drag a person to the seat of justice when the case purportedly brought against him is a non-starter.” 12. The Plaintiff's claims primarily involve allegations of fraud against the 1st and 2nd Defendants, stating that they engaged the 4th Defendant in a manner contrary to 2nd Defendant’s Memorandum and Articles of Association, thereby binding the 2nd Defendant to obligations devoid of valid resolutions. 13. I have had the chance to carefully look at the plaint dated 21st September 2022. I must state that there indeed exist reliefs sought against the 2nd Defendant. 13. The Court's current focus is not on whether the allegations will ultimately be proven. Instead, it considers whether they are so unfounded that, at this interim stage, the Court can definitively find that there are no genuine issues to be tried against the 2nd Defendant. 14. In my view, the contention by the 2 nd Defendant cannot be said to be such that no triable issue exists. The Plaintiff challenges the 2nd Defendant to seek to enjoin the 3 rd Defendant as an interested party if it so feels it is a necessary party. 15. At this interlocutory stage, the Court’s focus is solely on determining whether an arguable dispute exists. The role of the 2nd Defendant is subject to trial adjudication, it would be premature and inappropriate to exclude it at this stage. Page 5 of 6

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HCCOMM NO. 027 OF 2023 16. P. MULWA, J. Consequently, I find that the Notice of Motion dated 21st October 2025 lacks merit and the same is dismissed. Costs will abide by the outcome of the main suit. RULING delivered virtually, dated and signed at NAIROBI This 31st day of July 2026. PETER M. MULWA JUDGE In the presence of: Mr. Aira for Plaintiff/Respondent Mr. Esmael for 2nd Defendant/Applicant Court Assistant: Lispa Page 6 of 6

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