REPUBLIC OF KENYA IN THE PRINCIPAL MAGISTRATE’S COURT AT WAMUNYU M.C.C.C. NO. E005 OF 2025 RUTH MUTHIO PHILIP PETER WAMBUA MUTYAENE REUBEN KIOKO MUTYAENE …………………………….…..…. APPLICANTS -VERSUSLISDAVIS MAKAU MAITHYA .....……......…………….……… RESPONDENT RULING 1. The 3rd Plaintiff/Applicant moves the court under Order 2 Rule 15 and other allied provisions seeking to strike out the Defendant’s defence dated 22nd September 2025 for being frivolous, vexatious, a sham, and an abuse of the court process. The prayer is that the matter proceeds to formal proof and judgment be entered in favour of the Plaintiffs. 2. The, Plaintiffs urge the court to strike out the defence forthwith, enter judgment in terms of the plaint, and award costs, contending that the Defendant’s denials are mere smoke and mirrors against the solid wall of admissions and documentary proof. Fortified in this reasoning, they urge the court to note that the defence contains obvious admissions of tenancy, rent arrears, and receipt of demand letters. Yet, they attempt to disguise them as mere denials. 3. Not to stop there, the Plaintiffs state that the Defendant admitted being in arrears of Kshs. 120,000/= and renovation costs of Kshs. 6,000/=, aggregating to Kshs. 126,000/=. That in so admitting, he made a down payment of Kshs. 10,000/= and proceeded to make Page 1 of 4 MCCC E005/25
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further promises of monthly instalments which is well documented in WhatsApp and SMS messages they produced in their list of documents. The Applicants urge that the Defendant cannot now turn and insist that he does not owe them the amount he clearly admitted to and in his own words stated, “INFORMATION IS CORRECT.” 4. The Applicants took issue with the Respondent insisting that he supplied building materials worth Kshs. 18,000/- and that the dubious receipts attached from Bismillahi Hardware did not relate to the case at hand. That since the Defendant had admitted tenancy, service of the demand notice and arrears as per the WhatsApp messages attached, he was estopped by dint of Section 100 and 120 of the Evidence Act from denying liability. 5. In response to the Application in question, the Respondent swore a Replying Affidavit dated November 11, 2025 stating that the Applicants have not shown sufficient grounds for striking out the Defence. The Defence makes an admission that while he pulled down the wall as agreed with the 1st Plaintiff, there was no obligation for him to reinstate it upon vacating the premises. 6. Further, that he did not breach any tenancy obligations when he vacated as the plaintiffs were the ones who encouraged him to vacate to usher in a new tenant. On the issue of signing the demand notice on WhatsApp, he made no admission to the claims therein but only admitted service thereof. 7. The Respondent also asserted that he had a binding agreement with the 2nd and 3rd Plaintiffs that the agreed on the arrears and that the amount pending is Kshs. 31,000/- as opposed to the claim they made in the Plaint. 8. The law on striking out pleadings is well laid down in Order 2 Rule 15 of the Civil Procedure Rules, 2010. It stipulates that: Page 2 of 4 MCCC E005/25
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i. At any stage of the proceedings the court may order to be struck out or amended any pleadings on the ground that it discloses no reasonable cause of action; ii. it is scandalous, frivolous or vexatious; iii. it may prejudice, embarrass or likely delay the fair trial of the action; or iv. it is otherwise an abuse of the process of the court. 2. No evidence shall be admissible on an application under subrule (1) (a) but the application shall state concisely the grounds on which it is made. 9. The sole issue for determination is whether the defence raises triable issues. Striking out is a draconian measure which should be used as a last resort. Madan, J.A. (as he then was) said in D.T. Dobie v. Joseph Mbaria Macharia (Nbi C.A. 37 of 1978): “A court of justice should aim at sustaining a suit rather than terminating it by summary dismissal. Normally a law suit is for pursuing it. 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.” 10. It is this court’s belief that striking out is a judicial guillotine, reserved only for hopeless pleadings. A court of justice sustains suits rather than slays them prematurely. For the application at hand, the court finds that a number of issues have been raised in the Defence that merit a chance to be heard during trial. They are inter alia as follows: a. Whether demand notice was admitted. b. Whether Defendant vacated with or without approval. Page 3 of 4 MCCC E005/25
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c. Whether obligation to reconstruct wall existed. d. Quantum of arrears owed. 11. This court must hasten to add that triable issues are not issues that must succeed necessarily. They are just issues that should be ventilated through trial. The Court of Appeal in the case of Kenya Trade Combine Ltd vs Shah CA 193/99 in this regard stated that: “In a matter of this nature, all a defendant is supposed to show is that a defence on record raises triable issues which ought to go for trial. We should hasten to add that in this respect a defence which raises triable issues does not mean a defence that must succeed.” 12. In view thereof, this court finds that the Plaintiffs/Applicants Notice of Motion Application dated October 28, 2025 is bereft of merit. It hereby fails and is dismissed with costs. For the avoidance of doubt, costs shall abide the outcome of the trial. Dated this Law Courts. 23rd day of DECEMBER, 2025 HON. P. E. NABWANA SENIOR RESIDENT MAGISTRATE For the Applicants: Reuben Kioko Mutyaene For the Respondent: Musyimi Adv. C/A : Nicholas Kamoni Page 4 of 4 MCCC E005/25 at Wamunyu
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