JOYCE WANJIKU MADSEN & another v DR. DANIEL KAIRU KIARAHO & 3 others [2010] KEHC 1283 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (NAIROBI LAW COURTS)

Environmental & Land Case 1965 of 2007

JOYCE WANJIKU MADSEN……………………………………………1ST PLAINTIFF

PER KORGH MADSEN…………………………..……………………..2ND PLAINTIFF

VERSUS

DR. DANIEL KAIRU KIARAHO……………………………………1ST DEFENDANT

KIMANI KAIRU T/A KIMANI

KAIRU & CO. ADVOCATES……………………..……………………2ND DEFENDANT

DAVID KAMAU MAGWA…………………………..………………….3RD DEFENDANT

STANDARD CHARTERED BANK KENYA LIMITED ………….4TH DEFENDANT

RULING

This is an application by way of Chamber Summons under order VI Rule 13(1) b, c, d and Rule 16 of the Civil Procedure Rules seeking orders that the amended defence filed by the 1st and 2nd defendants be struck out and judgment be entered against the defendants in favour of the plaintiff in terms of the amended plaint dated13th March, 2009. The other orders sought are that the defences of the 3rd and 4th defendants should also be struck out with costs to the plaintiff.

The grounds relied upon by the plaintiff are that the defences filed by the 1st, 2nd, 3rd and 4th defendants are scandalous, frivolous or vexatious and may prejudice embarrass or delay the fair trial of this suit.It is also stated that the said defences are an abuse of the court process.In addition to the said grounds, there is an affidavit sworn by one Per Krogh Madsen who is the 2nd plaintiff herein.The application is opposed by all the defendants.

All learned counsel appearing for the parties herein have filed written submissions and cited several authorities.I have read the record before me together with the said submissions and authorities.My first observation is that the pleadings herein are closed.The amended plaint dated 13th March, and filed on30th March, 2009is very detailed.The allegations made against all the defendants herein are also very detailed.

I have looked at the defences filed by the respective defendants herein and related the same to the plaint with a view to addressing the application before me.It is now trite law that the principles of striking out pleading are now settled. The broad principle on which the court act to strike out is that apart from specified cases, it is only where it is perfectly clear that the plea cannot succeeded or has little substance.

Where it is the pleading by the defendant, guidance is to be found in several decided cases.InKenya Commercial Bank Limited Vs- Baraka Ochungu and anotherNairobiHCCC No.3815 of 1994Onyango J. (as he then was) said as follows;

“The law is now well settled that a defendant who shows that he has in his defence at least a triable issue, must be allowed to proceed unconditionally and be heard in his defence at a full hearing.”

In DT Dobie and Company Limited – vs – Muchina (1982) KLR 1, Madan JA. said as follows;

“The court ought to act very cautiously and carefully and consider all facts of the case without embarking upon a trial before dismissing a case for not disclosing a reasonable cause of action or being otherwise an abuse of the process of the court.At this stage, the court ought not to deal with any merits of the case for that is a function solely preserved for the judge at trial as the court itself is not usually informed so as to deal with the merits without discovery, without oral evidence tested by cross-examination in the ordinary way.As far as possible indeed, there should be no opinions expressed upon the application which may prejudice the fair trial of the action.”

The submissions by counsel in this particular application, with respect, have addressed issues and matters that belong to the province of a main trial.I say so because they have tended to give evidence rather than observations relating to the pleadings.

My position is that, if I were to delve deeper into this matter before discovery, inspection and exchange of documents prejudice may result to the parties herein.Suffice to say, the defences filed by the respective defendants disclose serious triable issues that must go for full trial.

Having said so, I find that the application lacks merit and the same is hereby dismissed with costs to the defendants. I noted earlier that the pleadings are closed.Counsel shall now embark on pretrial procedures under Order X the Civil Procedure Rules and set the suit down for hearing.

Orders accordingly

Dated, signed and delivered atNairobithis 22nd day of September, 2010.

A.MBOGHOLI MSAGHA

JUDGE