One to One Logistics Ltd v JH CR Dealers (Civil Case E041 of 2026) [2026] SCC 121 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] SCC 121 (KLR) REPUBLIC OF KENYA IN THE SMALL CLAIMS COURT AT MOMBASA CIVIL CASE E041 OF 2026 TN MWANGEKA, RM MAY 15, 2026 BETWEEN ONE TO ONE LOGISTICS LTD ............................................................. CLAIMANT AND JH CR DEALERS ................................................................................. RESPONDENT RULING 1. This ruling relates to a Notice of Motion Application dated 30th April 2026 seeking to have the Respondent struck ofi the suit for being an unnecessary party as it is wrongly sued. The Respondent has not filed any document in opposition to the application, as such the same is unopposed. 2. In Civil Appeal No 178 Of 2000 P C Desai Versus Navin M Patel T/A Sandpipers Constructions & Civil Engineering Services & 13 Others, the Court of Appeal had this to say regarding suing a wrong party; “ …the power to strike out a pleading is not to be lightly exercised. But when it is clear that wrong parties are sued and when the correct party to be sued is known no purpose could be served by letting the wrong party remain on record. A Court has a right to stop an action at a stage when it is known that a wrong party is sued rather than allow the plaintifi to vex such party with litigation.” 3. Further in Trusted Society of Human Rights Alliance vs Mumo Matemu & 5 Others 2014 eKLR the court observed that; “ a suit in Court is a ‘solemn’ process, “owned” solely by the parties. This is the reason why there are laws and Rules, under the Civil Procedure Act, regarding Parties to suits, and on who can be a party to a suit. A suit can be struck out if a wrong party is enjoined in it…..” https://new.kenyalaw.org/akn/ke/judgment/scc/2026/121/eng@2026-05-15 1
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4. In the present case the Claimant has gone ahead to maintain the suit against the Respondent despite being informed by the Respondent’s advocates on 20th April 2026 that their client is not the proper party. The Respondent has annexed copies of Car Delivery Note dated 18th December 2023, showing the subject motor vehicle was handed over to the purchaser. Therefore, the Respondent was not in possession, use or control of the motor vehicle on or around 24th June 2024 when the alleged accident occurred nor was vehicle being used with its authority or for its benefit. 5. To my mind, the Claim discloses no cause of action as against the Respondent. What then becomes of the Claim? Civil Appeal No 178 Of 2000 P C Desai Versus Navin M Patel T/A Sandpipers Constructions & Civil Engineering Services & 13 Others the Court found held that Court has the power, in proper circumstances, to arrest a wrong action and dismiss a case against wrongfully sued defendants whilst granting leave to the plaintifi to sue the correct party. 6. The power to strick ofi a suit is one to be exercised judiciously and sparingly. Additionally, the Statement of Claim herein discloses a viable cause of action and it would not be in the interest of justice to strick out the same. Guided by the principles under Section 3(3)(b) of the Small Claims Court Act as read with Rule 17(1) of its rules, the court hereby orders as follows: a. The Notice of Motion Application dated 30th April 2026 is allowed as prayed with costs of Kshs. 10,000/- to the Respondent. b. The Claimant herein is granted leave to amend their pleadings by 6th of June 2026 when this matter shall be mentioned for pretrial directions and consequential orders. DATED SIGNED AND READ VIRTUALLY AT MOMBASA THE 15TH DAY OF MAY 2026 HON. THERESA N. MWANGEKA RESIDENT MAGISTRATE/ADJUDICATOR In the presence of; Ms. Mwakizozo…. for Claimant; Ms. Cheruiyot.… for Respondent C/A Esther https://new.kenyalaw.org/akn/ke/judgment/scc/2026/121/eng@2026-05-15 2
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