2.It seeks orders:-1.The defendant’s defence and counterclaim dated July 1, 2020 and filed on July 3, 2020 be struck out.2.Costs of this application be paid by the defendant.
3.The grounds are on the face of the application and are set out in paragraphs (a) to (p).
4.The application is supported by the affidavit sworn by Lawi Sato, legal officer of the defendant (in the counterclaim) sworn on the September 2, 2021.
5.On the March 7, 2022, Ms Nganga holding brief for Mr Maosa who had just come on record for the Plaintiff (in the counterclaim) sought and was granted leave to file a response within seven (7) days. The matter was then fixed for mention on April 20, 2022.
6.On the April 20, 2022, Mr Wawire for the defendant (in the counterclaim) informed the court that Mr Maosa for the Plaintiff (in the counterclaim) had sought a further fourteen (14) days to put in a response. The court then granted a further fourteen (14) days and directed parties to file and exchange written submissions. The matter was fixed for mention on June 21, 2022.
7.On the June 21, 2022 there was no appearance for the plaintiff (in the counterclaim). No response and or submissions had been filed on his behalf. Mr Ongeri who was appearing for the Plaintiff (in the main suit) told the court that the plaintiff did not wish to oppose the application. The court then fixed this matter for ruling. By the time of writing this ruling there is no response and submissions filed on behalf of the plaintiff (in the counterclaim).
8.As stated hereinabove the court with the consent of the parties directed that the notice of motion be canvassed by way of written submissions.
The defendant’s (in the counterclaim) submissions
9.They are dated May 13, 2022. Counsel submits that the defendant’s counterclaim does not disclose any reasonable cause of action against the bank because this honourable court cannot declare to the effect that the charged properties were sold below market value as prayed in the counterclaim because two previous High Court decisions have held to the contrary.
10.That this court cannot declare to the effect that the transfer and registration of the said properties to the plaintiff is illegal and neither can it revoke the said transfer and registration as prayed because two previous High Court decisions have held to the contrary.
11.The said decisions of the High Court were to the effect that the properties were lawfully sold and transferred to the plaintiff in HCCC E416 of 2018 Abdullahi Mohamed Sheikh vs Gulf Bank Ltd & 2 Others; HCCC No 501 of 2016; Abdullahi Mohammed Sheikh vs Gulf Bank Ltd. The chargor has not applied to set a side the orders in the two decisions. The chargor still owes the Bank Kshs 35,815,499/81 as at January 22, 2019.
14.He prays that the Application be allowed.
15.I have considered the notice of motion, the grounds and the affidavit in support. I have also considered the written submissions and the authorities cited. The issues for determination are:-i.Whether the defendant’s counterclaim should be struck out.ii.Who should bear costs of this application?
16.The defendant’s counterclaim against the bank is as follows:-
17.It is this claim that the defendant (in the counterclaim) prays that it be struck out. Order 2 rule 15 of the Civil Procedure Rules, 2010 provides that:-
18.It is trite law that the court’s power to strike out pleadings is to be exercised sparingly and cautiously. This is because the court exercises the power without being fully informed on the merits of the case through discovery and oral evidence. This was stated so in the case of d. T. dobie & Company (Kenya) Ltd vs Muchira  KLR1 where it was held;
19.This is not the case in the instant suit. It is not in dispute that the defendant herein instituted two other suits in the High Court; HCCC No E416 of 2018; Abdullahi Mohammed Sheikh vs Gulf Bank Ltd & 2 Others; HCCC No 501 of 2016; Abdullahi Mohammed Sheikh vs Gulf Bank Ltd. There are orders granted in the above suits. The defendant has not applied for them to be set aside.
21.I agree with the bank’s submissions that the defendant is using the court process to frustrate the bank’s right to recover the loan owed by the defendant. The counterclaim raises no triable issues in light of the orders in the two suits and is an abuse of the court process.
23.In conclusion, I find merit in this application and the same is allowed in the following terms:-a.That the defendant’s defence and counterclaim dated July 1, 2020 and field on July 3, 2020 is hereby struck out.b.That costs of this application be borne by the defendant.It is so ordered.