Trust Bank Limited v Amin & Company Ltd &

another

High Court, Milimani Nairobi April 10, 2000

Onyango-Otieno J

Civil Case No 984 of 1999

Civil Practice and Procedure – striking out of pleadings - application to strike out defence – grounds for striking out – meaning of the various grounds of striking out - meaning of a pleading which is frivolous, meant to embarass or delay a fair trial or which is an abuse of the court process

- Civil Procedure Rules Order 6 rule 13(1)(a), (b), (c).

Civil Practice and Procedure – summary judgment – circumstances under which it may be granted - Civil Procedure Rules Order 35 rule 1(1)(a).

Affidavit – interlocutory applications - affidavits in applications for striking out pleadings under the Civil Procedure Rules Order 6 rule 13(1)(b), (c), (d) – whether affidavits based on information and belief in such application may be admissible - Civil Procedure Rules Order 18 rule 3.

The application before the Court was a chamber summons brought under orders VI rule 13 (1) (b) (c) and (d), 35 rule 1 (1) (a) of the Civil Procedure Rules and section 3A of the Civil Procedure Act. The application sought the striking out of the first defendant’s defence and the award of summary judgment against the first defendant. The grounds in support of the application were that the defendants have no defence to the applicant’s claim; that the defence was frivolous and vexatious and did not answer the plaintiff’s claim; that the defence would delay the fair trial of the action and that it was otherwise an abuse of the process of the Court.

Held:

1. The Court can strike out a pleading or have it amended in plain and obvious cases only. If a pleading is arguable or if a pleading raises even a single triable issue, the Court will allow the defendant to argue it.

2. In cases falling under order VI rule 13(1) (b) (c) and (d) of the Civil Procedure Rules, it must be shown to the Court that the pleading is scandalous, frivolous and vexatious, tends to prejudice, embarrass or delay the fair trial of the suit or is an abuse of the process of the court.

3. If the applicant can prove that the pleading is either indecent, or offensive, or improper, or amounts to a denial of what the defendant had clearly admitted earlier on, then he can be said to have brought his case within the standards required under order VI rule 13 (1) (b) as being scandalous.

4. A pleading or an action is frivolous when it is without substance or groundless or fanciful and is vexatious when it lacks bona fides and is hopeless or offensive and tends to cause the opposite party unnecessary anxiety, trouble or expense.

5. A pleading which tends to embarrass or delay fair trial is a pleading which is ambiguous or unintelligible or which states immaterial matters and raises irrelevant issues which may involve expenses, trouble and delay and that which contains unnecessary or irrelevant allegations which will prejudice the fair trial of the action.

6. A pleading which is an abuse of the process of the court means a pleading which is a misuse of the court machinery or process.

7. The main difference between order VI rule 13 (1) (b) (c) and (d) and order 35 rule 1 (1) (a) apart from the fact that order VI rule 13 (1) (b) (c) and (d) deals with pleadings in general whereas order 35 (1) (a) deals with a defence, is the onus of proof. Under order VI rule 13 (1) (b) (c) and (d) the pleading itself has to show that it cannot stand, because of the pleadings in the plaint and/or matters raised in the affidavits and annextures whereas under order 35 (1) (a) the defendant has to show that the defences he has filed raise at least one triable issue before the defendant can be allowed unconditional leave to defend. In either case, the power given to the Court is enormous and has to be exercised with a lot of care for it has a power that brings a case to an end without hearing the parties in their evidence.

8. Applications under order VI rule 13 (1) (b) (c) and (d) cannot be treated as interlocutory applications, since they are applications that seek to have the matter fully determined. Therefore under order 18 rule 3, affidavits based on information cannot be admissible even if the sourceof information is revealed.

9. A mere denial or general traverse in a defence is not sufficient and a defendant who does not specifically plead to all the issues raised in a plaint risks the probability of his defence being struck out or being held to constitute an admission of the issues raised in the plaint.

Cases

1. Machira, J P t/a Machira & Co Advocates v Wangethi Mwangi & another Civil Appeal No 179 of 1997

2. Watson, Muray v Rent-A-Plane Ltd & 2 others Civil Case No 2180 of 1994

3. Chatthe, Raghbir Singh v National Bank of Kenya Ltd Civil Appeal No 50 of 1996

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

Texts

Bullen, E; Leake, S M (Eds) (1975) Bullen, Leake & Jacobs Precedents of Pleadings London: Sweet & Maxwell 12th Edn p 145

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order VI rule 13(1) (b) (c) (d); order XVIII rule 3; order XXXV rule 1(1)(a)

2. Civil Procedure Act (cap 21) section 3A

Advocates

Mr Agimba for the Respondent.