a. Whether an application for striking out pleadings for not disclosing a reasonable cause of action can be brought under rules 15(b), (c) and (d) also
11.The issue to determine here is whether it was proper for the Applicant to base the application on a combination of all the grounds listed under Order 2 Rules 15(1) of the Civil Procedure Rules. The instant application was brought under Order 2 Rule 15(1) of the Civil Procedure Rules. The sub-rule has four sub-heads, being (a)-(d). They are disjunctive: an application can be brought based on any one of the sub-heads. That does not mean that a party may not combine one or two of the subheads in bringing an application. He is permitted to do so but not using all the sub-heads. One of them, being must sub-rule (a) should have the prayer thereunder as a stand-alone one. The rest of the other three can be combined if a party thinks there are good reasons to do so. The sub-heads (b), (c) and (d) only.
12.An application brought under sub-rule (a) should be a stand-alone for two main reasons. First, while it is not the duty of the Court to be on the lookout for errors on the part of the parties, for the Court and parties to conduct the trial fairly, and I mean here that the observing the principle of fair trial which calls for, among others, the speedy and just conclusion of the dispute, the starting point for consideration as to any dispute between parties is whether or not a real dispute exists, or if it does for a Plaintiff/Claimant, whether or not the Defendant has any reasonable defence to it.
13.Secondly, using the natural principle of like things to be treated alike and unalike ones to be treated unalike, under Order 2 Rule 15(2) any application brought under subhead (a) is not, at all, supposed to be supported by any affidavit evidence. And there is good reason for that: the parties’ pleadings only are under consideration in comparison with the law. If a party combines a prayer under the sub-rule with that in the others which require Affidavit evidence, he/she places the Court in a dilemma as to whether the prayer merits on its own not. At the same time, it presupposes that the Plaint or Claim or Defence raises a reasonable cause of action already but does not warrant being in Court for the reasons being advanced under one or a combination of any of the three sub-rules.
14.The point is that it is either a pleading does not raise a reasonable cause of action hence should be struck out without consideration of the other issues provided for under the other sub-rules or it raises a reasonable cause of action but then it meets the other challenges of being scandalous, frivolous or vexatious, or is likely to prejudice or embarrass the fair trial of the matter, or is otherwise an abuse of the process of the Court. Thus, to bring the Application under sub-rule (a) together with any of the other sub-rules (b), (c) or (d) or any combination of them is clearly wrong an incurable for the application. It implies that the Applicant is on a fishing expedition hence casting the net as wide as he/she possibly can to try luck. In my view such an application is the one that is itself an abuse of the process of the Court.
15.To sum up that finding, this Court finds instructive guidance in the case of Olympic Escort International Co Ltd & 2 Others -vs- Parminder Singh Sandhu & Another eKLR. In it the COA held:
b. Whether the application is merited
16.In beginning with this second issue, and now giving the reason for not summarizing the contents of the Further Affidavit, the Court notes that the Applicant filed it on 03/02/2023. He did so without leave of the Court as provided for under Order 51 Rule 14(3) of the Civil Procedure Rules. By contrast with the law on filing of pleadings by parties to the effect that a party wishing to join issue with allegations raised in a Defence may file a Reply to the Defence without leave of the Court, the procedure regarding Applications is different. A party who files an application does not have automatic leave to file any further affidavit subsequent to the Application without leave of the Court. If a Respondent files a replying affidavit and the Applicant is of the opinion that facts are raised in it which require further answers or clarifications by way of deposition, he can only file another affidavit in response with leave of the Court. Short of that any further affidavit filed would be illegally on record and a nullity. That is what the Applicant did herein and the further affidavit is illegally on record hence not worth considering.
17.Striking out a pleading is a rare phenomenon which the Court applies only in the clearest of the cases that the party’s pleadings are plainly hopeless or clearly not intended to achieve the ends of justice but put across a certain motive. Danckwerts L.J. of the House of Lords Wenlock V Moloney,  2 All E.R 871 at page 874, when considering a similar issue stated as follows:
18.The Court of Appeal in Blue Shield Insurance Company Ltd vs. Joseph MboyaOguttu  eKLR restated these principles thus:
19.In Brite Prints (K) Ltd v Attorney General HCCC No 1096 of 2000 was which was cited by Havelock J in Strategic Industries Ltd v Solpia Kenya Limited  eKLR, the judge held:
20.The Court now examines the merits of the Application under the sub-rules it was brought. First it was bought under the sub-rule that it did not disclose a reasonable cause of action. The phrase has been defined in a number of court decisions. In D.T Dobie & Company (kenya) Ltd V Muchina 1982 K.L.R 1, the late MADAN JA stated as follows:
21.In considering whether the pleading sought to be struck out discloses a reasonable cause of action or not, the content thereof is what is to be considered. I have carefully considered the Plaint dated 18/01/2021 and filed the same date. The Plaintiff states that he is the son of the late Hebron Amunze who was the original owner of land parcel LR. No. Kolongolo/Kolongolo Block2/Biketi/206 which is now registered in the Plaintiff’s name. He averred further that the Defendants were beneficiaries of the estate off the late Hebron Amunze and subsequently became registered as owners of land parcel numbers LR. No. Kolongolo/Kolongolo Block2/Biketi/416 and 417 respectively. After disturbance of the boundary between the parcels owned by the defendants and the plaintiff, the Plaintiff reported the dispute to the Land Registrar who caused a survey to be conducted and boundaries established, showing that the defendants had indeed interfered with the boundary. Then they ignored the findings of the Registrar and have continued to occupy the areas they did before. He sought an injunction against them and their servants and agents from interfering with the use of the land parcel he owns.
22.This summary clearly shows that there is indeed an issue to be tried by the Court. The issue is whether or not the defendants are in occupation of or interfering with the quiet use and enjoyment of land parcel LR. No. Kolongolo/Kolongolo Block2/Biketi/206. Because of that this Court finds that the pleadings disclose a cause of action. The first limb of the application fails.
23.With regard to the rest of the other limbs, on the one hand, the applicant argued that the survey conducted on 01/03/2022 which he annexed as BMA 3 showed that land parcel No. 206 was not adjacent to the two other parcels of land, namely 416 and 417. He deponed that the report failed to confirm that there was trespass by the defendants onto the suit land hence the suit disclosed no cause of action. On the other hand, the Plaintiff repeated the contents of the survey report and how it showed that there were variations of the sizes of the three parcels of land in issue. He stated that the report dated 05/10/2022 indeed identified the mischiefs on the ground.
24.I have carefully considered the issues raised. They relate to the differing survey reports purported to be over the same parcels of land. The Report dated 06/04/2022 was as a result of the order of this Court that the County Surveyor does visit the disputed parcels of land and establish the position on the ground. It raises a number of questions that need to be clarified by the evidence of both the parties and the surveyor. It cannot be wished away. In any event the law cannot permit the suit to be struck out on the basis of a survey report that is not only disputed but strongly contested without the officer who prepared the same being questioned on his findings, for clarification. In my view the Applicant seems to be subtly trying to escape from the reality of testing the evidence that has come forth from the survey that was conducted pursuant to an order of the Court. He is keen to run away from the truth.
25.In my view the above facts do not show how the suit herein is an abuse of the process of this Court or is likely to prejudice, embarrass and delay the fair trial herein or is a flagrant abuse of the process of the Court. Therefore, I find that the application herein is absolutely unmeritorious and is the one that is an abuse of the process of this Court. I dismiss it with costs to the Plaintiff. And to prevent the filing of frivolous applications as the instant one, in case the applicant shall in times to come intend to file another application, he shall have to seek first and obtain the leave of the Court. This suit shall be mentioned on 03/05/2023 to fix a hearing date.