Francis Waithaka Ngokonyo &  2 others v Kenya Posts & Telecommunication Corporation

High Court, at Nairobi September 29, 1992

Bosire J

Civil Suits Nos 357, 412 & 811 of 1992 (Consolidated)

Civil Practice and Procedure – striking out – Court to be slow in making an order for.

Employment Law – summary dismissal – whether retirement in public interest equivalent to summary dismissal.

Civil Practice and Procedure – pleadings – meaning of scandalous, frivolous and embarrassing pleadings.

The plaintiffs whose suits were consolidated sought to strike out the common defendants’ defence on the ground that the same was scandalous, frivolous, vexatious and otherwise an abuse of the process of court.

The three plaintiffs who were former employees of the defendant serving in various portofolios were retired in public interest. They contested their retirement alleging that in light of their long and distinguished service with the defendant and in absence of any preceeding warning letters, their retirement was actuated by malice.

The defendant in defence to each claimant admitted that they all served in its employment and rose through ranks as averred but denied that they were entitled to benefits particularized in the plaint. The defendant further averred that the plaintiffs were properly retired under section 17 (c) of the Employment Act.

Held:

1. Striking out pleadings is a draconian measure. The Court is therefore obliged to act with caution and should be slow in deciding to order the striking out of any pleading.
2. Except in plain and obvious cases a Court should exercise its discretion in favour of a trial in all cases.
3. Section 17(c) of the Employment Act deals with summary dismissal on account of willful neglect to perform any work or if performed, the work is so performed carelessly or improperly.
4. Scandalous implies a pleading which is merely made for the purpose of abusing, or prejudicing the opposite party’s case.
5. A statement in the written statement of defence that a party had been dismissed or retired from his employment on public interest because of persistent negligence in his work in no way can be termed as being embarrassing.
6. In the defences filed there are no allegations made which may be termed as scandalous, embarrassing, frivolous or intended to abuse the process of the court.

Application dismissed.

Cases

DT Dobie & Company (Kenya) Ltd v Muchina [1982] KLR 1

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order VI rules 13(1)(b),(d); 16

2. Employment Act (cap 226) section 17(c)