Investments and Mortgages Bank limited v Nancy Thumari, Marsam and Company Limited, Nyoro Construction Company Limited & Mutinda Mutunga [2015] KEHC 2640 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL   APPEAL NO.  417   OF 2008

INVESTMENTS AND MORTGAGES

BANK LIMITED……………......…………………………………….APPELLANT

VERSUS

NANCY THUMARI ……………...………………………….1ST RESPONDENT

MARSAM AND COMPANY LIMITED………….......…….2ND RESPONDENT

NYORO CONSTRUCTION

COMPANY LIMITED……….......…………………..………3RD RESPONDENT

MUTINDA MUTUNGA………........………………………..4TH RESPONDENT

JUDGMENT

This appeal arises from the ruling and order of Honourable Kimingi (Mrs) Senior Principal Magistrate in Milimani CM CC NO.720 of 2006 delivered/made on 10th July 2008.

The Memorandum of Appeal dated 11th August  2008  and filed  in this court on the same day  by  the appellant  Investments  & Mortgages Bank Ltd sets  out  3 grounds  of appeal challenging  the aforesaid  ruling and order for  reasons  that:-

1)    The magistrate erred  in law  and in fact in  finding that the  claim against  the appellant  could be sustained;

2)    The magistrate  erred  in law and  in fact by failing  to  find that the suit ought  to have been struck out;

3)    The magistrate erred in law and fact in failing to appreciate   that the evidence supporting   the application before her was not controverted.

The appellant  prayed to this court  to set aside the order  of the Senior Principal Magistrate  and substitute  it  with an order striking  out the suit  in the subordinate  court  with costs  to the appellant.

The background to the appeal herein  is that  by an amended  plaint  dated 13th February 2006 and  filed in court  on 17th March 2006, the plaintiff in the lower court Nancy Wangechi Thumari (suing  as the personal representative  of the estate of  the late Sammy Ndegwa  sued Marsman Investments  & Mortgages Bank  Ltd, Nyoro Construction  Company Ltd and Mutinda Mutunga,  claiming  for general and special damages  arising  from an alleged  road traffic  accident which  occurred on 8th October 2003 along  Outering  road, Nairobi  involving  the deceased  Sammy Ndegwa and  motor  vehicle  registration  No.KAH 042 E. Paragraph  5 of the said  amended  plaint alleges that the  aforesaid  motor vehicle  was jointly owned  by the 1st  and 2nd defendants while  the 3rd  defendant  was their authorized  driver or  agent and  or servant.

The 1st defendant, now  appellant  entered an  appearance  and filed defence  on 15th March 2006 denying   at paragraph  2 that  it ever or  at all  owned  motor vehicle  registration  No.  KAH 02 E at the time  of the alleged  accident  and contended that it  had prior  to the  filing  of the suit notified  the plaintiff/1st  respondent’s  advocate on 15th June 2005 of that position.  It averred that it had been wrongly sued as a party to the suit.  At paragraph  4 of the defence, the appellant  disclosed  that by an agreement  for  sale dated 12th March  2001 motor vehicle  registration  No.  KAH 042 E which was jointly owned  by Marsman & co. Ltd and Investment  & Mortgages Bank Ltd, by virtue of a hire purchase  agreement, was sold  to the 2nd defendant  Nyoro Construction Company and that  therefore no cause of action had been disclosed  against  the 1st defendant/appellant herein.

By an amended defence of 17th January 2007, the appellant pleaded that the action was time barred.  On 29th August 2006, by a chamber  summon dated 28th August 2006, the  1st defendant/appellant herein filed  an application  under Order  6 Rule 13(1) (a) (b) (d) and 16 of the Civil Procedure  rules, seeking from the court  orders:-

1.    That the further amended plaint as against the 1st defendant struck out with costs on an advocate client basis.

2.    That the 1st defendant’s costs  be  assessed  in the sum of shs 1,500,000 and all further proceedings in the suit be stayed  until the  1st defendant’s taxed  costs are  paid in full.

3.    That costs of the application be awarded to the 1st defendant in any event.

The application was premised on the grounds that:-

a)    There is no reasonable cause of action against the 1st defendant as there is no legal entity by that name.

b)   That the 1st defendant was never registered as the owner of the vehicle.

c)    The plaintiff was informed in writing on or about 15th June 2005 that the vehicle that caused the accident was never owned by the bank.

d)   The suit in addition to being an abuse of the court process is scandalous, frivolous and vexatious and a wrong party was used.  Unnecessary costs have been incurred by virtue of the 1st defendant having to defend itself.

e)   The plaintiff should be condemned to pay costs on an advocate/client basis for filing a frivolous suit.

f)      The costs should be assessed in the sum of kshs 1,500,000 being the amount the vehicle KAH 042E was sold to the 2nd defendant.

The application  in the lower court was supported  by an affidavit  sworn  by Paul Kinyanjui Ndungu on 28th August  2006  to the effect  that the 1st defendant/appellant  only provided  the finances  for the purchase of the truck /Mv in question  vide  a hire purchase  agreement  dated  14th  August 1996 with Marsmans Co. Ltd.

Further, that the physical possession of the  truck was  with the  hirer  as shown by copy of  Hire Purchase agreement annexed  as “PNJ” and that  on 12th March 2001, Nyoro Construction Ltd purchased  the said  motor vehicle KAH 042 E  as shown   by exhibit  “PN2’sale agreemen.  That when the appellant received demand notice after the accident, it responded giving all those full facts.  That when the  accident  took place  on 8th October 2003 the bank  was not  the legal owner  of the motor  vehicle having relinquished its ownership to Nyoro Construction  Company  hence there  was no reasonable  cause of action  against the bank. The rest of the depositions reiterate the grounds in support of the application.

The application  by the appellant  was opposed  by the 1st respondent who was the  plaintiff who swore  an affidavit  on 3rd  November 2006 contending that the certificate  of ownership  issued for the  vehicle in question  is only prima facie evidence  of ownership which is  rebuttable  by evidence   to the contrary.  Further, that  the appellant  was the  beneficial  owner of the  accident  motor vehicle  hence a proper party  to the suit as  shown by  copy of police abstract  “NWTI” annexed  to her supplementary  affidavit  sworn on  30th November 2007  hence the  issue of  ownership could only be determined  during the  hearing of the suit and  not through  the summary procedure.  She urged the court below to strike out the application with costs.

The 3rd  defendant Nyoro Construction too opposed  the application  by the 1st  defendant  appellant  contending  that as there was  evidence  and admission that the appellant   was the registered  owner of the  accident  motor vehicle, they  were properly  enjoined  and that the  issue of ownership  of the motor vehicle  could only be canvassed  at  the hearing  of the suit.  They relied on an affidavit sworn by Lydia Gutu Assistant Legal officer, Kenya Alliance Insurance Company Ltd, the 3rd defendant’s Insurers.  The record also shows that  the 3rd defendant Nyoro Construction  Company Ltd did  file an application dated 28th July 2006  under Order 1 Rules 10(2) and 22 of  the Civil Procedure Rules  seeking to be struck out from  further  proceedings  in the matter. The grounds upon that application was predicated were that the plaintiff/1st respondent herein had not showed that it was the registered owner of the motor vehicle registration No.  KAH 042E at the time of the material accident hence  the  claim  was unsustainable  against it, relying  on the  case of Thuranira Karauri vs Agnes Ngeche  Njeru C/A 192/2006 where  the  court held that a party cannot rely  on what is stated in a police abstract as sufficient  proof  of ownership  of motor vehicle.

In their submissions  in support  of the  chamber summon dated  28th August  2006 in the lower court, the  appellant  herein maintained that the suit  against  it was unsustainable  relying on  the cases  of Mohammed  & Another  vs Haidara (1972) EALR 166 to advance  the proposition that uncontroverted  facts on oath must be taken  to be admitted.  It  further relied  on the Halsbury’s  Laws  of England  VOL. 37 Practice & Procedure Page 318  paragraph 430  that the  court is  invested  with extensive  powers to strike  out pleadings  and thereupon or for other  good reason  reasons arising from the making of the claim or  defence, to dismiss  actions  by the plaintiffs  or to enter judgment against  the defendants.  That those powers  are both salutary  and necessary not only  to enforce  the basic rules of pleadings  but also to dispose of pleadings  which  are hopeless, baseless or without  foundation  in law or in equity  or are otherwise  an abuse  of the court process. Further, that the  powers are exercised  by the  court by summary process, speedily, and  generally, at an early stage  of the proceedings and they operate as a powerful, effective  method  of disposing  of proceedings  without  a plenary trial.

Further reliance  was placed  on the case  of Samuel Mukunya Kamunge vs John  Mwangi Karuri HCCA  34/2002 Nyeri  where the  court held that  the trial magistrate was  in error when  he held that  only a certificate of  search  from the Registrar  of Motor  vehicles  could prove  ownership  of the  motor vehicle  as such certificate was  not conclusive  proof  of ownership  of the motor vehicle, Section 8 of the Traffic Act  providing that  the contrary can be  proved  in recognition  of the fact that often times,  vehicles change hands  but the  records  are not amended.

The two applications – one by the 1st defendant/appellant and the other by the 3rd defendant/respondent herein were consolidated   for hearing together and one ruling delivered on 10th July 2008 affecting both applications.

In her brief ruling, Hon R.N. Kimingi (Mrs) Senior Principal Magistrate dismissed both applications with costs in the cause.

In the trial magistrate’s view, it would not  have been in  the interest  of  justice to consider  each  of the application in isolation as  the  issues  raised  in the application are issues  that ought to be determined  upon full hearing  in the circumstances  of the case. It is that order of 10th July 2008 by the trial court that provoked this appeal by the 1st defendant/appellant.

The appeal herein was admitted to hearing on 12th October 2012 and directions given on 1st July 2014.

All parties’ advocates on record did agree on 31st July 2014 to have the appeal disposed of by way of written submissions. The appellant’s  submissions  were filed on  10th September  2014  whereas  the 1st  respondent’s submissions  were filed  on 11th November 2014.

In support  of the appeal, the appellant submits that the trial magistrate  should have  allowed  their application dated  28th August  2006 for reasons  that even though  they  were  the registered  owners  of the accident  motor  vehicle, the motor vehicle  was not owned  by the appellant, citing  Section 8 of the Traffic Act which enacts that:

“The person in whose name a vehicle is registered shall, unless the contrary is proved, be deemed to be the owner of the vehicle.”

The appellants also referred to the Court of Appeal decision  in Securicor (K) Ltd vs Kyumba  Holdings  (Ltd) (2005) e KLR  where the  Court of Appeal  held that although  the appellant remained the registered owner  of the motor vehicle its actual possession  had passed to a third party, and that therefore  the true owner of the motor vehicle  could not have been the appellant as the vehicle had  been  sold out to another person  and that  it was not even being driven by the  appellant’s driver or employee on the  occasion. Further, that it was not shown that the appellant had  any interest in the matatu business, that business not being its concern.

The appellant further relied  on Ramadhani Ali Ruwa vs Private Safaris EA Ltd CMCC 191/2012  where the  1st defendant  successfully  applied to have  the suit struck  out from the suit  on account  that it  had been wrongly enjoined as it  was not  the owner  of or in possession of the motor vehicle  KAQ 472D when the  accident  occurred though it remained the registered  owner of the motor vehicle  according to the Registrar  of Motor vehicles records.

Further reliance  was made on the case of Mohammed & another  vs Haidara (1972) EA 166 that facts  made on oath  without  being  controverted  on oath  are not in issue, to advance  the argument  that  the appellant’s assertion  that the  bank, Investment  and Mortgages Bank Ltd was only  a financier  and not bonafide owner or  factual user  of the said motor  vehicle  which fact was not denied by the respondents.

On  the power to strike  out the  suit summarily, the appellant  relied on the Halsbury’s Laws of England  4th Edition  VOL.37 at paragraph  433  which I have  reproduced in this ruling above.

The appellant concluded that  it had been wrongly sued and as there was no basis of retaining it in  the suit  since it was not liable in whatsoever  manner  to the 1st respondent  for the   fatal injuries sustained by the  deceased in the alleged  accident,  this court should  allow this appeal  and the application dated  28th August  2006.

The 1st respondent  Nancy Thumari in her submission by her advocate  on record  Gaita & Company  Advocates  opposed the appeal and maintained that  the appellant  was properly sued  since  the motor vehicle KAH 042 E in question was  registered in its name of the appellant at the time  of the accident  and that the  3rd defendant  was hiding  behind  the fact that  at the time  of the alleged  accident  on 8th October  2003, the motor vehicle  in question was  not registered  in its name.

In her view, the law is that a party can only be struck off the proceedings if no reasonable cause of action exists against it.  Further,  that striking  out is a draconian remedy that can only  be  resorted  to in plain and obvious  cases where  there is  no single  triable issue, relying  on DT Dobie & Company (K) Ltd vs Muchina (1982) KLR where  it  was held  at page 2 that”

“ The power  to strike out  should be  exercised  only after  the court  has considered  all facts, but  it must not embark  on the  merits  of the case itself  as this is solely  reserved for the trial judge.  On an application to strike out pleadings, no opinions should be expressed as this would prejudice fair trial and would restrict the freedom of the trial judge in disposing the case.  The court should aim at sustaining rather than terminating the suit.  A suit should only be struck out if it is so weak that it is beyond redemption and is incurable by amendments.  As long as the suit can be injected with life by amendments it should not be struck out.”

It was further submitted that the appellant and 3rd respondents’ application were mischievous as the 3rd  defendant  denied  having bought the accident  motor vehicle  hence the need  to put that  issue to trial since  under Section 8 of the Traffic  Act,  only the trial can prove that a sale happened or  that ownership  changed, since registration is prima facie  evidence  which can  only be rebutted by evidence to the contrary and that the issues raised could not be determined  at the  interlocutory  stage.

In her view, the pleadings raised the following triable issues:-

i.        Ownership of motor vehicle KAH 042 E.

ii.Whether the defendants and their respective drivers or agents   were negligent as pertains the manner in which the said motor vehicle was driven on the date of accident.

iii.Whether the negligence   occasioned the deceased’s death.

iv.Which of the defendants  is liable  for the accident  and the resultant   loss

v.Which party is liable to my costs.

Finally, the 1st respondent  contended that the  attempt by the defendants  to extricate themselves  from the proceedings  is legally untenable  as the issues at hand cannot  be resolved  without a  full trial.  She supported the order of the trial magistrate.

The 3rd defendant/respondent Nyoro Construction Company filed written submissions on 19th December 2014.  They maintain that the copy of records  show that the appellant herein was the registered  owner  of motor vehicle  KAG 042E at the time  of the accident, together  with another  and that, that fact is  supported by the appellant’s own supporting  affidavit  and exhibit  PN2  which did not  offer sufficient  basis  upon which the court could  make a  finding  as to whether  the appellant   herein had  sold   its interests   in the said  motor vehicle  at the material time.

Albeit  the 3rd respondent  had also sought  to be expunged  from the proceedings  in the lower court  for not being  the registered  owners  of the accident  motor vehicle, in this appeal, they  supported the ruling of the learned trial magistrate  for finding  that it was  in the interest  of justice that  the  issues raised  by the appellant  be determined  at the full hearing, since  copy of records  dated  3rd November 2006  issued on 18th March 2005  indicate  that the  1st and  2nd defendants  were registered  as joint  owners  of the said motor  vehicle  as at 8th October 2003  when the accident  occurred.

The 3rd  respondent  also relies  on Section  8 of the Traffic Act  that a person  in whose  name a  vehicle is registered  shall, unless  the contrary is proved, be deemed  to be the  owner of the vehicle, as was held in Superfoam Ltd  & Another vs Gladys Nchororo Mbero (2014) e KLR.  They maintain that the documents  in support  of the application  dated 28th  August  2006  did not  offer sufficient  basis  upon which the court could  make a finding  as to whether  the appellant  had sold  its interests in the  motor vehicle KAG 042E at the material time.

In response  to ground 2 of the Memorandum  of Appeal, the 3rd  respondent  relied on the decision in Abubakar Zain Ahmed  vs Premier  Savings  & Finance  Ltd & 4 others (2007)   eKLR  where  the judge relied on 3  cases of Samuel Kanyi Gitonga vs  Peter Mugweru Nairobi HCC 3356/89(unreported ) Bosire J referring to striking out  as :_

i.            A “draconian measure” and held that it must  be done only in the clearest of  cases, where it is clear that  the defence  or plaint as the case may be is beyond  resuscitation  by amendment.

ii.            Trade bank  Ltd vs Kersam Nairobi HCC 6662/91 Lall J held that :

“ the exercise  of this summary power  to strike out  a pleading  is only  in plain and  obvious  cases  when the pleading  in question  is on  the face of it  unsustainable” and

iii.            Nitin Properties vs Jagir singh Kalsi  Nairobi CA NO.  132/89 (unreported) where this  court stated  that:-

“ striking  out is a drastic  remedy and it has been held  time and again that  striking procedure  can be invoked  only in plain and obvious cases and  that such jurisdiction must be  exercised  with extreme caution.”

Finally, the 3rd respondent relied on Blue Sky EPZ Ltd  vs Nataka  Polyakora & Another (2007) e KRL where the court  stated that:

“ the power to strike out  pleadings  is draconian, and the  court will exercise  it only in clear  cases where, upon looking at the pleading concerned, there is  no  reasonable  cause of action or  defence  disclosed.”

In their view, the case  against the appellant is not unsustainable  on the  face of it hence  the appellant  should  be retained in the proceedings as per the  further  amended  plain as it discloses  a reasonable  cause of action against it.  The 3rd respondent prayed  that  this appeal  be dismissed.

Determination

I have carefully considered this appeal in line with the applicable law, decided cases and submissions by the respective parties’ advocates.  As the first appellate court, my duty is stipulated in Section 78 of the Civil Procedure Act 10(1) subject to such conditions   and limitation as may be prescribed to:

a)    Determine the case finally

b)   Remand  a case

c)    Frame issues and refer them for  trial

d)   Take additional evidence or to require evidence  to be taken

e)   Order a new trial

Subject as aforesaid, to perform as nearly as may be the same duties as are conferred  and imposed  by the Act  on courts of original jurisdiction in respect  of such instated  therein.

Albeit  the appeal arises  from an interlocutory   decision of the trial court  and therefore  it may not necessarily be intended to terminate  the entire suit  bearing  in mind the  fact that  there were other parties to  the suit besides  the appellant herein, who sought  to be excluded, I am mindful of my duty  as an appellate  court of  first instance  to evaluate  and  consider the affidavit  evidence  and the law and exercise as nearly  as  may be the powers and  duties of  the court of original jurisdiction and  come to my own independent  conclusion, but in so doing, I must give an  allowance  of the fact that I neither  saw nor heard the parties  submissions  first hand, see Selle vs Associated  Motor Boat  Company Ltd (1968) EA R3.

In addition, as the 1st appellate court, I will only interfere with the lower  court’s finding if the same  is founded on wrong  principles  of fact or  law as guided by the  Court of Appeal case of Nkube vs Nyamiro (1983) KLR 403 where it  was held that:-

“ a Court  of Appeal  will not  normally interfere  with  the finding  of fact  by a trial court  unless  it is based on no evidence, or on  a misapprehension of the evidence, or the judge  is shown  demonstrably to have acted  on wrong principles  in reaching his conclusion.”. Per Law JA, Kneller, Hanox Ag JJA. The Court of Appeal further held that the  appellate court  is however not  bound by the  trial court’s finding of fact “ If  it appears  that either it failed to take into  account  particular  circumstances or probabilities, or if  the impression of the demeanor  of a witness  is inconsistent   with the evidence  generally”  See  also Ndiritu vs Ropkoi & Another EA LR  354 per O’kubasu, Githini , Waki JJA  and Mwangi & another  vs Wambugu (1983) 2KLR  100 where the principles enunciated   in Sellecase (supra) were  restated.

Having evaluated and analyzed the  evidence on record and submissions,  I find that there is only one main  issue for  determination in this appeal and that is: Whether   the trial magistrate  erred in law and  fact in dismissing  the appellant’s  application seeking to  strike out  the appellant from the  suit on the ground that  it had  proved that it did not own the  accident motor vehicle registration No. KAH 042 E at the material time of the accident on 8th March 2003.

I have heard an analyzed so much on the submissions on striking out of pleadings and or suits.

In the appeal before me, however,  the question  is striking  out a party  who claims  that no cause  of action is disclosed  against  it and that it  would be  a waste of  judicial time to allow  for a full trial  of a claim against  it  after it  has laid  before the court  sufficient  material  to extricate  it from  liability.

Order 6 Rule 13 (a), (b) , (d),(2) and 16 of the Old Civil Procedure  Rules  under which the application in the lower court was  brought was in 2010 repealed  and replaced  with Order 2 Rule 15  of the Civil Procedure Rules  2010  which in parimateria  provides that:-

“ At any stage of the proceedings,  the court may order  to be struck  out or amended  any pleading on  the ground that:-

a)    It discloses no reasonable  cause of action or defence in law; or

b)   It is scandalous, frivolous or vexatious; or

c)    It may  prejudice, embarrass or delay the  fair trial of the action; or

d)   It is  otherwise an abuse of  the process of  the court;

And  may order the suit  to be stayed  or dismissed  or judgment to be entered  accordingly, as the case may be.

No evidence shall be admissible on an application under Sub Rule (1) (a) but the application shall state concisely the grounds on which it is made”

From the above provisions it is clear that the power to strike out pleadings is a discretionary one.  It therefore follows that the trial court in refusing to strike out the appellant from the pleadings was exercising her judicial discretion.  The circumstances under which   an appellate court may interfere with a decision of the trial court were clearly set out in the case of Mbogo vs Shah & Another (1968) EA 93 that:

“ I think it is well settled that this court  will  not interfere with the exercise  of discretion  by the inferior court unless  it is  satisfied  that the decision  is clearly wrong because  it has misdirected  itself  or because  it has acted on matters on which it  should not  have acted  on or because  it has failed  to take into consideration matters  which it  should have taken into account  and consideration  and in doing so  arrived at a wrong conclusion and as a  result  there has  been misjustice.”

The trial magistrate  in dismissing  the appellant  and 3rd respondent’s applications seeking to be struck  out of  the suit observed  that .

“ it is my considered  view that  it would  not be in the interest of justice  to consider  each of the applications in isolation as  the issues  raised  in the applications are  issues that  ought to be  determined  upon full hearing  in the circumstances s of this case.”

Regrettably, the trial magistrate did not  identify any issues  for determination by  the trial court and  neither did  she  analyze  the applications as filed and  presented before her.  She simply made  references  to the applications, the provisions  under which   they  were brought, the  supporting and replying affidavits  and respective annextures  without attempting  to delve into what the affidavits  or even annextures  were  saying.  She then made one statement   that “I have noted the applications as well as the supporting documents, submissions and the authorities relied on.  I have also noted and considered the opposition together with  the  documents  thereto  and the submissions.”

The question I pose is whether the trial magistrate exercised  her discretion    judiciously.  In my view, she did not, for reasons  that she  did not lay any basis  for exercising  her discretion  not to allow  the applications  as presented.  I however  note that  the  3rd respondent supports that decision by  the trial magistrate, which decision was  against  it, as it  had also sought to be struck out of the suit.

The 3rd  respondent’s application was brought  under the provisions of Order 1 Rule 10(2) and (22) of  the Civil Procedure  Rules  which provide  that:

The court may at any stage  of the proceedings either  upon or without  the application of either party, and on  such terms  as may appear  to the court to be  just, order that  the name of any party improperly joined, whether  as plaintiff   or  defendant, be struck out.  And that  the  name of any person   who ought to  have been joined, whether  as plaintiff or  defendant, or whose presence  before the court may be necessary in order to  enable  the court effectively and  completely   to adjudicate  upon and  settle  all question involved  in the suit, be added.

In my humble view, the appellant’s  application ought to have been  brought under  the above provisions of  Order 1 Rule 10(2) and (22) of  the Civil Procedure  Rules  which empowers  the court with  unfettered  discretion to admit or  strike out  of proceedings  a party with or without  an application  being made .

In Jan Bolden Nielsen vs Herman Phillipus Steyn & 2 others (2012) e KLR Honourable Mabeya J held that:

“ In  my view, a necessary party  is a person  who ought to have been  joined   as a party and in whose  absence  no effective  decree can be  passed  in a proceeding by the court.  If a necessary party is not impleaded, the suit  may be a non starter  as the  reliefs  sought is  granted, may be ineffective.”

What I gather  the appellant  pleading  is that  no action  lies against  it hence  it should  not be taken  through the trial.  But  first, I shall  endeavour  to establish what a  reasonable  cause of action is, and  whether  a party  who is wrongly joined can  seek to be struck  out for  reasons that there is no reasonable  cause of action disclosed  against it.

In DT Dobie  & Company (K) Ltd vs  Muchina supra  the court summed what  unreasonable cause of action” in Order 6 Rule  13(1) of the Civil Procedure Rules  as:-

“An action with some  chance of success, when the allegations in the plaint  only is considered.  A cause of action will not be considered  reasonable  if it does  not state such facts as to support  the claimed prayer.” In V.K. Construction Company Ltd  vs Mpata  Investments  Ltd Nairobi HCC 257/2003 Ringera J (as  he then was ) stated  that “ the word “cause of action”  means  an act  on the part  of the defendant which gives  the plaintiff  his cause  of complaint.”

In Halsbury’s Laws of England 4th Edition VOL. 37 paragraph 20, it is posited  that:

“ cause of action has been  defined  as meaning  simply a factual situation  the existence of which  entitles  one person to obtain from the court a remedy against another  person.  The phrase  has been held from the earliest  time to include  every fact  which is  material to be proved  to entitle  the plaintiff to  succeed, and every fact  which the  defendant  could have  a right to  traverse. “ cause  of action” has also  been taken to mean that  particular  act on the part of the defendant  which gives the plaintiff  his cause  of complaint, or the  subject  matter or  grievance  founding  the action, not merely  the technical cause  of action.”

According  to Ringera J in the V.K. Construction  Company Ltd (Supra), and which proposition I agree with that, “ a reasonable  cause of action is such a factual situation as would entitle a person to obtain a remedy against  another person and which  has some  chance of success  when  only the averments  in the plaint  are considered.  In other words, the  test for the reasonableness  of the cause  of action is  the possibility  of  the success thereof  when only the  plaint is considered.”

In Victor  Mabachi & Another  vs Nurtun  Bates  Ltd CA 247/2005 (2013) e KLR  P. Kihara  Kariuki (President, Court of Appeal, P.M. Mwilu, S. Gatembu Kairu JJA,  where the  appeal arose  out of   an interlocutory application before  the High Court  that the appellants had been improperly joined as parties and that  their joinder in the suit before the  High Court breached the  principle  of law that an agent may  not be sued  where there is a disclosed  principal, which application was brought  under Order 6 Rule  73  of the Civil  Procedure  Rules;  the Court  of Appeal  held:

“ The issue  of whether  the appellants were disclosed  agents  of the 1st defendant  in the suit  before the High Court  was contested. In our view, the plaint and the record  are dispositive  of the question  whether  the appellants  herein  were  agents of a disclosed  principal, Mediacom East Africa.  The appellants negotiated  and  signed  the said agreement  relied on by the respondents on behalf  of Mediacom.

Based  on the record before us, we agree with the appellant’s  submissions that there had been disclosure  by the appellants to the  respondents  of the principal on whose behalf their actions were undertaken  it is therefore  an finding that  the appellants  were agents of  Mediacom East Africa Ltd, being the disclosed principal .

It  remains now to consider  the second  issue whether  the enjoinment  of the  appellants in the suit in the High Court  breached the principle of law that an  agent cannot  be sued where  there is  a disclosed principal. In Anthony Francis Wareheim t/a Wareheim  & 2 Others  vs KPOSB CA Nairobi 5/48 of 2002  at page 70  this court (CA) unanimously  held as follows:-

“ It was also prima facie imperative  that the court should have dismissed  the respondents claim against  the second  and  third appellants for they were impleaded as agents  if a disclosed principal  contrary to the clear principle of  common law that  where  the principal  is disclosed, the agent is not to be  sued.  Furthermore, the court  having  found on the evidence that  the 2nd  and 3rd  appellants were principals  in  their own  right  and not agents of  the first  appellant  in the  transaction  giving  rise  to the suit, it should  have dismissed  the suit against  the  first appellant  who had  been sued  as  the principal”

The Court of Appeal proceeded  to allow the  appeal on the ground that the  appellants  ought not to have been  joined  in the suit  before the High Court and  struck out  the respondent’s  suit in the High Court  against the  appellants with costs.

Albeit the  appeal herein does  not concern  the agent/principal  relationship of the parties  to the suit  in the lower court, the analogy  I draw  from the above Court of Appeal decision in Victor Mabachi  case is that a court can strike  out from the proceeding a party who  is wrongly enjoined  where there is  clear evidence  that that party ought not  to have been sued  in the first  instance or  where it  is apparently  clear that  there are  other parties  to the suit who  are properly sued and the liability attributed to  them is not  to be shared with  the party who is complaining to  have  been wrongly enjoined.

This court also acknowledges  all  the decisions  right from DT Dobie  vs Muchina (supra) Francis  Kamande vs Vanguard  Electrical Services  Ltd (1996), Olympic Escort  International Company Ltd & 2 Others vs Parmunda Singh Sandhu  & Another  (2009) e KLR–that:

The summary procedure of striking out suits can only be adopted when it  can be clearly seen  that a claim  or answer  on the face   of it is obviously unsustainable  and further, that there  is no triable issue.  Triable issue is not necessary one that  the defendant  would ultimately  succeed  on .  It need only be bona fide.

In this case, the appellant contends  that the suit  against  it by the  1st respondent  should be  struck out ex debito  justiciae for  misjoinder, whereas  the 1st  and 3rd respondents  maintain  that as the appellant  was the legal owner(registered) owner of the motor vehicle KAH 042 E at the  time of the accident, it is a  necessary party.  The appellant  has availed  evidence to prove the fact that prior  to the suit in  the lower court  being instituted, it received  a demand  letter  concerning the material  accident and in a rejoinder, it wrote  to the 1st respondent’s advocates  stating that  it was not the owner of  the accident  motor vehicle  as its  interest was only limited to  being  its financier   under a hire  purchase  agreement with the 2nd respondent.  It went ahead  to provide  evidence of sale of the said motor vehicle  to the 3rd respondent  and an acknowledgement of a cheque for shs 1,500,000 being purchase  price for the motor vehicle  whose  possession it parted with in favour of the 3rd  respondent.

The  1st respondent  nonetheless went ahead  to enjoin the appellant  to the suit  in the lower  court for  reasons  that it was still the registered  owner, jointly with the  2nd respondent  of the accident motor vehicle  at  the time  of the accident.  The  1st respondent  maintains  that under  Section 8 of the Traffic  Act Cap 403  Laws  of Kenya, the person in whose  name  a vehicle  is registered  shall unless the contrary is proved, be presumed  to be the owner.”

In other words, prima facie, the appellant  is the owner of the  accident motor vehicle KAH 042E.  The appellant  vehemently denies, ownership or interest  in the vehicle as  it was  sold to the  3rd respondent  and  the police abstract  discloses the owner  thereof  as  the 3rd respondent, with  the 4th respondent Mutinda Mutunga being its driver.  The 3rd  respondent  also filed an application seeking to be struck out of the proceedings  as it was not the  registered  owner  of the  accident  motor vehicle and after  its application  too was  dismissed, it has  now changed  tact  and supports the 1st  respondent’s  position that indeed, it is the person  in whose name  the vehicle  is registered  who should be  the owner  and therefore that  is a triable  issue which  can only be  determined  at a full hearing.

I disagree with the respondent’s position on ownership of a motor vehicle for the following reasons:-

i.            That there is clear evidence to the contrary that the accident motor vehicle registration No.  KAH 042 E, in as  much as  the appellant was the registered  owner thereof, that the  evidence  show that the  accident  motor vehicle  was sold   and possession  taken by  the 3rd  respondent  2 years  before  the accident  although  the transfer  had not been effected.

ii.            That  the appellant acknowledged receipt  of purchase  price of  shs  1,500,000/- from the 3d respondent  and that  agreement  for sale  or sale thereof  has never been  repudiated  or voided.

iii.            That  albeit  the 3rd  respondent  is  not the  registered  owner of the  accident  motor vehicle, he is undoubtedly the beneficial  owner  having legally purchased and  paid for it  and taken possession  thereof  from the appellant  and the 2nd  respondent he was also the person directly benefiting from the use of that vehicle.

iv.            That  the 4th respondent  who  is named  as the driver/agent/servant  of the 3rd  respondent  at the time  of the accident  in question did not deny  that  fact and  neither  did he state  that he was acting as the agent  of the appellant, who was not  in control  or management  of the accident  motor  vehicle  at the time of  the accident.

v.That a registration card or log book  was only prima facie  evidence of  title  to a motor  vehicle and the person  so registered having proved, on a  balance  of probabilities  that he was  not, infact, the owner of the  said  motor vehicle, it would be an absolute  absurdity, scandalous  and vexatious  to drag him into   the proceedings  and trial to  achieve  nothing out of it  see Osapil vs Kaddy (2001) I E ALR 181.

vi.            That the doctrine  of vicarious  liability  depends  not on legal/title ownership of the motor vehicle, but  on the declaration of the task or duty (see Anyanzwa  & 2 Others  vs Luigi de  Casper  & another (1981) KLR 10.

In other words, prima facie, there is no evidence  that the  4th respondent’s  acts of  negligence  would bind  the appellant  to be  held vicariously liable  where it  is clear  like in this case  that the 4th respondent  was not  an agent  or servant  of the appellant  at the time of  accident.

Iam fortified by the holding  in Morgans  vs Lauchbuy (1972) ALL  ER 606 where it  was stated that:

“To establish agency relationship, it is  necessary to show that  the driver was using  the car  at the owner’s  request  express  or implied  or on its instruction and was doing  so in  the performance  of the task or duty  thereby delegated  to him by the driver.”

I also accept  the holding  by Ougo  J in Jayne  Wairimu Turanta vs Githae John Vickery  & Equity Bank Ltd & Munene Dan wherein the Equity Bank Ltd  was enjoined  to the suit for the sole reasons that  it  was  the financier of the accident  motor vehicle  KAY 909 Y which  collided  with KBI 997R.  In this case, It was  argued  that the  bank was only a registered  owner as  security for monies  advanced  to Don Munene  for  the duration  of the loan agreement  and that it  had  no control over the daily  use of  and management  of the suit  motor vehicle  whose control  and or management  rested  with Munene Don  and that  the driver  if the said  motor vehicle  at the time of  the accident  was never  an agent or servant  of Equity Bank Ltd  thus no liability, vicarious or otherwise  could attach against the bank for the  acts of the  said driver.

In allowing  the application/prayer  to strike out  the plaintiffs claim against  the Equity  Bank Ltd, the court  observed , as  had been submitted  by the appellant  that “ the  bank could  not be  negligent  since it  was securing  itself by registering   the vehicle together  with  Munene Don until the latter  completed  paying  the loan he  had borrowed  from  the bank to purchase  the motor vehicle.”

In the present case, even though the  appellant  and 2nd respondent  were shown  to  be registered  owners  of the motor vehicle, such ownership  was not sufficient  to create vicarious liability  for the negligence   of  the person   who drove it  at  the time of the accident as an agent  of the appellant, who was not in fact, in control  or management  of the accident  motor  vehicle  at the time of  the accident on behalf of the appellant.

Finally, there having been  full disclosure  of the relationship between the appellant  and the 3rd respondent before the  institution of suit in the lower court, it was unnecessary  to drag  the  appellant into those  proceedings  merely  because  he was the registered  owner  of the accident  motor vehicle.  And  even after instituting  such suit  against  the appellant, it  was incumbent  upon the 1st  respondent, at the earliest  opportunity, to seek to exclude the appellant  from the pleadings or proceedings.

In  my view, the appellant  is not a necessary party to those proceedings  whether as plaintiff  or defendant  and in the exercise of the powers conferred to this court by Order 1 Rule 10(2) of the Civil  Procedure  Rules,  I find that the joinder of the appellant to the suit giving rise to this appeal was wrong and  I proceed to strike out  the name of the appellant from the  proceedings  in the lower court, that  being the only  expedient order  that appear to be just in the circumstances of this case.

Accordingly, I allow this appeal, set aside the order of the trial magistrate refusing to strike out the name of the appellant from the suit and substitute it with an order striking out the appellant’s name from those proceedings.

Each party to bear their own costs of the application in the lower court and of this appeal.

Dated, signed and delivered in open court at Nairobi this 6th day of July 2015.

R.E. ABURILI

JUDGE

6/7/2015

Coram R.E. Aburirli J

C.C. Samuel

Mr Thuita for the respondent

No appearance for the appellant

Court Judgment read and pronounced in open court as scheduled.

R.E. ABURILI

JUDGE

6/7/2015