Warui v Direct Assurance Company Limited (Civil Suit E020 of 2023) [2024] KEMC 184 (KLR)

5. The summary of the replying afidavit in opposition of the Notice of motion application is that the defendant has paid a total of Kshs. 843,765/= inclusive of costs and this was in fulfilment of its obligation as an insurer and as such it has already discharged its obligation in accordance with CAP 405 and as guided by the plaintifi’s decree. 6. The defendant further annexed 2 remittance advices for Kshs.250,000/= and Kshs. 593,765/= 7. The defendant further avers that the fact that it alleges that it paid all the money as per the decree and the plaintifi’s denial of the same is a triable issue which the defendant should be given an opportunity to place evidence and disabuse that notion by the plaintifi. 8. The respondent further concludes that striking out of pleadings is a draconian method and it is only hopeless pleadings that have possibility of being cured through amendment that can be struck out which is not the case obtaining in this matter. 9. I have considered the application, the supporting grounds and those in opposition. I have also considered submissions by parties and the decisions relied on. B. ISSUES FOR DETERMINATION. 10. The following issues commend themselves for determination by this court. a. Whether the application dated 1st December 2023 should be allowed. b. Whether costs should be awarded and to who. C. ANALYSIS AND DETERMINATION. a. Whether the application dated 1st December 2023 should be allowed. 11. The applicant has moved this court under Order 2 rule 15 of the Civil Procedure Rules to strike out the respondent’s defence. The rule provides that a party may at any stage of proceedings apply to strike out pleadings for disclosing no reasonable cause of action; being scandalous, frivolous or vexations; for being prejudicial or embarrassing or for being an abuse of the court process. 12. The applicants’ main argument is that the defence does not disclose any reasonable defence known in law and that the defence contains actual falsehoods and/or misinformation as the matter was heard on merits and judgment was duly issued after which the Respondent preferred an appeal which was ultimately dismissed by the high court sitting at Garsen. 13. I have considered parties’ arguments for and against this application. The applicants’ claim, according to their plaint dated 21st September 2023 is one for Kshs. 277,009/= which amount is a summation of balance of the decretal sum and assessed costs of the appeal. 14. The applicant admits that the Respondent has paid a total of Kshs. 843,234/= out of Kshs. 899,999/ = thereby leaving a balance of Kshs. 56,234/=. The applicant further asserts that after the appeal was dismissed with costs, the said costs were assessed at Kshs. 220,775/= 15. All these put together is what is owed to the plaintifi/Applicant and this is the reason this declaratory suit was filed. 16. Before I delve into the nitty gritty of the application, I pose and ponder whether this was the best approach to be taken by the Plaintifi as opposed to execution either by attachment or by garnishee proceedings but I digress. https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/184/eng@2024-02-28 2

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17. The jurisdiction to strike out pleadings is discretionary and must be exercised judicially. This is the position ably advanced in the case of Postal Corporation of Kenya v I .T Inamdar & 2 Others [2004] 1 KLR 359, “ the court stated that the law is now well settled that if the defence filed by a defendant raises even one bona fide triable issue, then the defendant must be given leave to defend.” 18. In Olympic Escort International Co. Ltd. & 2 Others v. Parminder Singh Sandhu & Another [2009] eKLR, the court opined that a triable issue is not necessarily one that the defendant would ultimately succeed on but it need only be bona fide. 19. From the application and the replying afidavit there is evidently a triable issue which is the respondent on one hand asserts that it paid all that it was supposed to pay to the applicant and as such it discharged its obligation in accordance with Cap 405 while on the other hand, the applicant asserts that in satisfying the decree the respondent left out a balance together with the assessed appeal costs. 20. Similarly, in D.T. Dobie & Company Kenya Limited v Joseph Mbaria Muchina & Another [1980] eKLR, Madan JA, stated: No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action, and is so weak as to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a court of justice ought not to act in darkness without the full facts of a case before it. 21. I agree with the Respondent and with the several findings of the superior courts on this issue which are instructive and binding to this court that it would be a draconian step by this court to strike out the defence and as I have stated hereinabove. 22. There is in place an issue for determination as to whether the defendant paid the entire decretal amount or not. This is an issue worth trying and this court will not attempt to shut its doors on a litigant to prosecute its case. 23. It sufices to note that even some authorities cited above despite being decided prior to the 2010 constitution where suits were determined either way on procedural technicalities they appreciated the need to hear all parties and giving parties their fair chance in court to state their cases. This is the spirit born out of Article 159[2][d] of the Constitution of Kenya,2010. 24. Unlike the times prior to the promulgation of the 2010 Constitution where procedural technicalities were the order of the day, the 2010 Constitution insists of substantive justice over procedural technicalities. 25. Aforegoing it cannot be gainsaid that striking out of pleadings is a drastic remedy that should only be resorted to where a pleading is a complete sham which is not the case herein as stated hereinabove. See the Court of Appeal in Blue Shield Insurance Company Ltd v Joseph MboyaOguttu [2009] eKLR cited with approval in the case of Michael Kalani Muatha v Kyalo Mwikya & another [2022] eKLR 26. Applying the principles in the decisions cited above to the present case and the application before this court, it is clear that the application is not one for allowing. https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/184/eng@2024-02-28 3

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b. Whether costs should be awarded and to who. 27. The basic rule on attribution of costs is that costs follow the event. It is also well recognized that the principle costs follow the event is not to be used to penalize the losing party rather it is for compensating the successful party for the trouble taken in prosecuting or defending the case[application]. 28. The defendant opposed the application and being the successful party in the circumstances, he is awarded costs of the application. D. CONCLUSION AND DISPOSITION. 29. The application dated 1st December 2023 is not merited and it is hereby dismissed with costs to the Defendant/Respondent. 30. The costs shall be in the cause. 31. Orders accordingly. DATED, DELIVERED AND SIGNED AT LAMU LAW COURT THIS 28TH DAY OF FEBRUARY 2024. HON. FLAVIAN.M. MULAMA RESIDENT MAGISTRATE LAMU LAW COURTS In the presence of: Court Assistant:- Vivian Wambui. Ms. Mutete for the Plaintifi/Applicant. Mr. Arasa for the Defendant/Respondent. https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/184/eng@2024-02-28 4

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