James Kibugu Kioni & Solomon Muriithi Kibugu v Simon Muigai Mwangi & Kiarie Kariuki & Githii Advocates [2019] KEELC 2443 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAKURU

CASE No. 300 OF 2016

JAMES KIBUGU KIONI...................................................................1ST PLAINTIFF

SOLOMON MURIITHI KIBUGU...................................................2ND PLAINTIFF

VERSUS

SIMON MUIGAI MWANGI ........................................................1ST DEFENDANT

KIARIE KARIUKI & GITHII ADVOCATES...........................2ND DEFENDANT

RULING

1. By Notice of Motion dated 19th March 2018, the 2nd defendant seeks orders that its name be struck out from the suit and that it be awarded costs of the application. The application is supported by an affidavit sworn by Christine Githii, an advocate of this court practising as such in the firm of Kiarie Kariuki & Githii Advocates. She deposed that the 2nd defendant represented the plaintiffs and the 1st defendant in a sale agreement dated 10th June 2013 until the plaintiffs failed to pay its fees. The 2nd defendant also represented the plaintiffs in Nakuru Succession Cause No. 120 of 2012. As per terms of the agreement, the plaintiffs delivered to the 2nd defendant a Certificate of Lease to hold as a stakeholder for its client, the 1st defendant. That the 2nd defendant has no interest in the Certificate of Lease besides holding as security for its client. That therefore the plaintiffs have no reasonable claim against the 2nd defendant.

2. A consent letter dated 30th July 2018 was filed on 17th August 2018 as between the 1st and 2nd defendants in which the 1st defendant indicated that the application be allowed as prayed.

3. The plaintiff did not file any response to the application or any submissions despite directions being given as to their filing and exchange. The 2nd defendant argued in its submissions that no reasonable cause of action is disclosed against it, that it’s not a necessary party to the case and that the application should therefore be allowed.

4. I have considered the application and the submissions. I have been invited to strike out the plaintiffs’ claim against the 2nd defendant. Even though the application is unopposed and the relief sought is discretionary, I remind myself that striking out is a draconian measure that should only be resorted to in the clearest of cases. In Crescent Construction Co. Ltd vs. Delphis Bank Ltd [2007] eKLRthe Court of Appeal stated:

…one thing remains clear, and that is that the power to strike out a pleading is a discretionary one. It is to be exercised with the greatest care and caution. This comes from the realisation that the rules of natural justice require that the court must not drive away any litigant, however weak his case may be, from the seat of justice. This is a time-honoured legal principle. At the same time, it is unfair to drag a person to the seat of justice when the case purportedly brought against him is a non-starter.

5. Proceedings herein were commenced by Originating Summons dated 29th July 2016. I have read the Originating Summons as well as its supporting affidavit. I note that the plaintiffs’ case is largely as stated in the present application: that the 2nd defendant represented the plaintiffs and the 1st defendant in the sale agreement dated 10th June 2013 and that the plaintiffs delivered to the 2nd defendant a Certificate of Lease to hold pursuant to those instructions. In those circumstances, it is clear that the 2nd defendant was acting for a known client and relief is actually sought in the Originating Summons against the client – the 1st defendant. I further note that no case is pleaded against the 2nd defendant beyond the fact that it is holding the Certificate of Lease by virtue of instructions in the particular transaction. I therefore agree with the 2nd defendant that the Originating Summons discloses no reasonable cause of action against it. It was unfair in these circumstances to drag the 2nd defendant to court.

6. In the end, the plaintiffs’ suit against the 2nd defendant is hereby struck out. The 2nd defendant shall have costs of Notice of Motion dated 19th March 2018 and of the suit. The costs shall be paid by the plaintiffs.

7. Ruling in this matter was to be delivered on 20th March 2019 but was delayed since I proceeded on a lengthy medical leave. The delay is regretted.

Dated, signed and delivered in open court at Nakuru this 18th day of July 2019.

D. O. OHUNGO

JUDGE

In the presence of:

No appearance for the 2nd defendant/applicant

No appearance for the plaintiffs/respondents

No appearance for the 1st defendant/respondent

Court Assistants: Beatrice & Lotkomoi