1.The trial magistrate in this matter struck out the Appellant`s plaint on the date the matter was coming up for pre-trial directions for the reason that the verifying affidavit accompanying the plaint was deposed by another person other than the plaintiff. The Appellant was aggrieved by the orders and filed the instant appeal. The grounds of appeal are that:(1)The learned magistrate erred in fact and in law in finding that the Respondent’s oral application to strike out the suit had been properly raised in court.(2)The learned magistrate erred in law in making a substantive orders during a mention without a formal application before the court.(3)The learned magistrate erred in law in finding that the provisions of the Civil Procedure rules and the rules of evidence were mere technicalities that ought to be disregarded at will.(4)The learned trial magistrate erred in law by issuing orders in a vacuum without a formal application.(5)The learned magistrate erred in law in disregarding rules of evidence and admitting unsupported oral evidence raised by the Respondent’s advocates from the bar which was highly prejudicial and infringed on the appellant’s right to equality of arms by not affording them opportunity to be heard.(6)The learned magistrate failed to adhere to the well laid down principles for striking out a suit which denied the Appellant his constitutional right to fair hearing under Article 50 of the Constitution.(7)The learned magistrate erred in law in effectively ambushing the Appellant by striking out the suit during a mention for pre-trial conference.(8)The learned magistrate erred in law by failing to follow the doctrine of precedents.
2.The appellant prays for orders that the ruling and orders of the learned magistrate delivered on 2nd October 2017 be set aside and that this court be pleased to reinstate the Appellant’s suit.
3.The Appellant filed a legal action against the respondent seeking for special damages amounting to Ksh.221,050/= being expenses incurred in repairing the Appellant’s motor vehicle as a result of an accident that occurred on April 20th, 2010 along Masari Road involving the Appellant's motor vehicle and the Respondent's vehicle. The case was scheduled for a pre-trial mention on 2nd October 2017 during which the Respondent’s advocate orally asked the court to strike out the suit for purportedly having a defective verifying affidavit. Despite strong opposition from the Appellant’s advocate who requested the advocate for the respondent to make a formal application, the trial magistrate struck out the verifying affidavit together with the plaint noting that the verifying affidavit had been sworn by a person other than the plaintiff contrary to Order 4 rule 1(2) of the Civil Procedure Rules. The Appellant then filed this appeal seeking that the orders of the learned trial magistrate be set aside and the suit be reinstated.
4.This court gave directions that the appeal be dispensed with by way of written submissions. The Appellant filed their written submissions dated 4th May 2023 while the Respondent’s advocate did not file theirs. They told the court they were to await the determination of the court.
5.The Appellant contends that he had a right to a fair hearing whose importance was explained in the case of County Assembly of Kisumu & 2 others v Kisumu County Assembly Service Board & 6 others  eKLR where the court held that:
6.The Appellant submitted that a court of law should aim at sustaining a suit rather than terminating it by summary dismissal. In support of that proposition he relied on the case of D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & another  eKLR.
7.The Appellant submitted that Order 2 Rule 15(1) of the Civil Procedure Rules provides for the procedure and conditions under which a plaint may be struck out, being that a pleading may be struck out on the grounds that: it discloses no reasonable cause of action; is scandalous or vexatious; it may prejudice, embarrass or delay the fair trial of the action; and it is otherwise an abuse of the process of the court.
8.The Appellant further contends that the law requires an applicant for striking out pleadings to adduce evidence of the grounds they rely on. Further that under Order 2 Rule 15 an applicant needs to make a formal application by way of a notice of motion whose affidavit should contain the evidence of its incompetence.
9.The appellant further relied on the case of Mungai vs Texcal House Service Station  eKLR where the court held that it was quite irregular to strike out a plaint on the basis of an oral application. The court held that:
10.The Appellant submitted that a court cannot make substantive orders during a mention and he cited the case of Paul Odhiambo Ogunde v Maersk Kenya Limited  eKLR where the court held that :
11.The Appellant also cited the case of Anthony Milimu Lubulellah, Advocates v Patrick Mukiri Kabundu & 3 0thers  eKLR where the court held that:
12.The Appellant contended that by summarily determining the application during a mention, the Appellant was denied adequate opportunity to prepare and ventilate his defence and this breached his constitutional right to fair hearing.
13.It was the Appellant’s argument that under Oder 2 Rule 15 that a suit should only be struck out if it cannot be cured through an amendment. The appellant further contends that even if the verifying affidavit was defective, it was not mandatory for the court to strike out the plaint. She cited the case of Benel Development Limited v First Community Bank Limited  eKLR where the court stated that:
14.The Appellant submitted that although the court had discretion to strike out the verifying affidavit if it was deemed defective, such defective verifying affidavits are not fatal since the case was at pre-trial stage.
Analysis and Determination
15.The main issue for determination in this appeal is whether the trial court erred in striking out the appellant’s suit during a pre-trial mention.
16.The Court of Appeal in the case of Wanjiku v. Esso Kenya Ltd (1995-1998) 1 EA 332 CAK dealt with the question of whether a court can make substantive orders during a mention and stated as follows:
17.Similarly, in the case of M/S Master Power Systems Limited v Public Procurement Administrative Review Board & 2 others  eKLR the court stated that:
18.From the above authorities, it is well established that a court cannot make substantive orders during a mention except where both parties consent. In the present case, the trial court made an order striking out the suit during a pre-trial mention despite opposition to the oral application by counsel for the Appellant who insisted on a formal application being made. In my view, it was a misdirection on the part of the trial magistrate to make an order striking out the plaint in such circumstances. Courts have held that striking out of pleadings ought to be a measure of last resort. In the case of D. T. Dobie and Co. (Kenya) Limited v Joseph Mbaria Macharia (supra) it was the court held that:
19.At the same time, it has to be observed that the right to hearing is a fundamental right that cannot be denied to a party without a justifiable cause. In the premises, it is only fair and just to set aside the order of the trial court in this matter so as to give an opportunity for the Appellant`s suit to be heard and determined on merit. I find this appeal to be with merit and consequently allow it. The order dismissing the suit issued on 2nd October 2017 is thereby set aside and the suit is reinstated for hearing. The suit to be heard by a magistrate of competent jurisdiction other that Hon. D.O. Mbeja.
20.As the Respondent did not take part in the appeal, I order the Appellant to bear his own costs to the appeal.