Thomas Nthiwa Mwanzia v Sammy Kisangi Mutie & Oscar Kaloki Nzuki [2016] KEHC 4578 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE NO.  44 OF 2015

THOMAS NTHIWA MWANZIA ………………PLAINTIFF/APPLICANT

VERSUS

SAMMY KISANGI MUTIE……………1ST DEFENDANT/RESPONDENT

OSCAR KALOKI NZUKI………….….2ND DEFENDANT/RESPONDENT

RULING

1. By an application brought by way of a Notice of Motion dated15th October 2015 and filed on the same day under certificate of urgency, the plaintiff Thomas Nthiwa Mwanza seeks from this court orders:

Spent

That judgment on admission be entered for the plaintiff and against the defendants in terms set out in the plaintiff (sic) and assessment done accordingly to establish its full value.

That in the alternative  the defendants’  statement  of defence dated  the 23rd day of February 2015  and filed on 27th day of February  2015  be struck  out and or  dismissed for being  scandalous, frivolous, vexatious, constitutes  an embarrassment  or delay  of the fair trial of the action and is otherwise  an abuse of  the process of the  court and  judgment be entered for the plaintiff as prayed  for in the plaint.

Those costs of this application and the suit be awarded to the plaintiff.

2. The application is brought  under the express provision of Order  2 Rules  15(1) (b), c and d , Order  13 Rule 1 and 2 , Order 51 Rule  1 and 3   of the Civil Procedure  Rules and  Section 3A of the Civil Procedure Act  and all other  enabling  provisions of the law.

3. The Notice of Motion  is predicated  on 16 grounds on the face  of the application and a  supporting affidavit  sworn by the  plaintiff/applicant  Mr Thomas Nthiwa Mwanzia  sworn on 15th  October, 2015  together with  several  annextures thereto.

4. Principally, the plaintiff/applicant avers that there is  sufficient evidence on record   by way of  an agreement  dated 6th July  2013  between the plaintiff and the defendants that  the defendants admit that  as a result of their acts  the plaintiff  lost a  commercial building  valued   at over  kshs  3,000,000, which  plaint,  it is  contended was clear, plain, readily discernible, obvious  on the face thereof  without  requiring  any  other evidence  to  ascertain  that the  admission  had been made; that the  said agreement   was executed  voluntarily hence there  is no point going for a full trial since  such trial would be  merely a repetition of discussion  in  the said agreement  which would  be futile  as there is  nothing  left  to be decided.

5. It is also contended that the defendants’ defence raises no triable issues and does not disclose any defence to the claim by the plaintiff.  That it is a sham, is bad in law and an abuse of the process of court.  That the same is frivolous, vexatious and scandalous and therefore it should be struck out.  The affidavit by the plaintiff replicates the details as per the grounds in support of the application.

6. The defendants/respondents filed a replying affidavit on 25th November 2015 opposing the application by the plaintiff.  However, they  never served  it upon the  applicant and waited  until  a day  to the hearing  of the application on 1st December  2015 is when  they  served   it  on Mr Arusei Advocate  who raised  objections at the hearing  and also pointed out  that the replying affidavit had no date on which it  was commissioned.

7. The court after hearing the objection to the affidavit  being  on record out of time, and   as the respondents did not  seek leave of court to have the affidavit admitted  out of time, the court  disallowed the affidavit  under Order  51 Rule  14  of the Civil Procedure  Rules  as it  was not served three clear  days  before the hearing  date.

8. The defendants’ counsel was nonetheless allowed to submit on points of law only.

9. The application was canvassed orally in court.  Mr Arusei  counsel  for the plaintiff/applicant  urged the court to  strike out  the defence  as filed by the defendants  and or dismiss it  and enter judgment  for the plaintiff as prayed  with costs.  He entirely relied on the grounds, the affidavit   in support of the application, the annextures and the several authorities filed in court.

10. In his submissions he prayed that the court should only enter judgment in terms of prayer a, b, and d of the plaint and any other order the court may deem necessary to grant.  He was to withdraw prayers c.  He maintained  that the defendants  had conceded in the agreement  of  6th July 2013  that the sale  was illegal and the court could  therefore not sanction  an illegality  since the 2nd defendant  admitted not being the  owner of  the property which he  sold  to the plaintiff.  That there  was a further admission  that the plaintiff lost residential  property  valued at 3 million  hence all ingredients of  admission  of a claim were present and therefore  there  was no  point going to a full trial  to replicate the same issues  which are  clear which in essence is a waste of judicial time and  that it   would delay fair hearing/trial and deny justice  to the plaintiff.  He relied on the case of  Ecobank (K) Ltd  V Robbin Ltd  where it   was  held that an admission  need not  be in the pleadings  and that  it can  be discerned in any other  way and that  in this case, since the  admission in  the agreement  is clear and  unambiguous, the plaintiff/applicant is entitled  to a speedy delivery of justice  as  espoused  in Article  159 of the  Constitution  and Sections 1A, 1B of the Civil Procedure  Act.

11. Mr Arusei submitted that  the defendant’s defence as  filed  is intended  to delay justice  for the plaintiff as it is a mere denial and  using the court for  extraneous  purposes  to delay a just claim which is  an abuse of the  court process.  He urged    the court to rely on all the filed authorities.

12. In response  Mr Asiyo  advocate holding  brief for Mr Nzavi counsel for the defendants submitted that Article  50(1) of  the Constitution  commands  the court to ensure  both parties  to the suit   are accorded a full hearing  hence the suit  should  go on for trial and examination  of parties’  testimonies.  That Article  160(1) of the Constitution  creates  independence  of the judiciary  and by this application  the   applicant is directing the court on what is a frivolous, vexatious  and scandalous  suit which should be left to  the court to decide  on its own accord.

13. He also urged the court to rely on the Oxygen principles under Section 1A and 1B of the Civil Procedure Act to allow the defendants a chance to defend themselves.  He also relied on Section 3A of the Civil Procedure Act.  He concluded that the matters before the court were weighty and deserved a full trial.

14. In a rejoinder Mr Arusei maintained that what was before the court   was a fair hearing and that there was no proof that there was no fair hearing.  That the plaintiff has satisfied the court on the requirements under Order 13 Rule (1) and 2 of the Civil Procedure Rule.  That the defendants had not addressed themselves on the applicable law.

15. I have seriously considered this matter in terms of the application, the grounds, affidavit in support, annextures and the authorities relied on by the plaintiff/ applicant.  I have also considered  the parties advocates  oral rival  submissions in court.

16. Before determining the plaintiff’s  application, it is  important  to examine the substance  of the claim which the  plaintiff brought  to court  for determination  by  the court.

17. Vide a plaint dated  5th February  2015  and filed in court on the same date, the plaintiff Thomas  Nthiwa Mwanzia  sued the  two  defendant’s  Sammy Kisangi Mutie  and Oscar  Kaloki Nzuki.  It is alleged  that on     18th January  2010 the plaintiff visited the  offices of Mavoko Land Development  Company Limited and met the 1st  defendant, an employee of the said company.  The 1st  defendant  introduced  the plaintiff  to the  2nd defendant  who was said  to be the  rightful owner of plot  No. 1593 phase III measuring 0. 030 hectares  situated in Ngwata Mavoko  and the  plaintiff agreed to  purchase the said plot  for a  consideration of kshs  140,000 and paid   kshs 26,000 in addition, being  transfer  fees, on signing  of the sale agreement.  The plaintiff took possession  thereof and  commenced construction of a four storey commercial cum residential  building  as per  the approved development plans by  Mavoko Municipal Council.  Upon  such completion of the ground  floor comprising  8 rooms and 4 single  rooms, a common passage way and toilets, a third party  without  notice came and  demolished  it on  account that the plot  belonged to it.

18. On being approached  by the plaintiff to explain  the situation, the defendants  owned up  that they had sold a  plot which did not belong  to the 2nd defendant and they acknowledged by  an agreement dated  6th July 2013  that indeed  the plaintiff  had spend  kshs 3,000,000 on development.  They also agreed  to refund  him the purchase price and  transfer  fees paid to the 2nd  defendant and even  made  part payment thereof.

19. The plaintiff therefore  sued the defendants claiming for:

The full value of the property demolished on LR plot 1593 Ngwata  Phase III Mavoko to be  assessed  or proved  at the  hearing.

Special damages/expenses  subject  to proof.

General damages  for breach  of contract.

Costs  of the suit and  interest  at court rates .

Any other or   further orders that  the court may deem fit   and necessary to grant.

20. The defendants  filed a joint   defence  dated 23d February  2015  after  entering  an appearance dated  the same  day on 27th February 2010.  The 1st defendant who was alleged to have influenced  or  played a key role in the  execution of the sale agreement  between the plaintiff and the  2nd defendant denied the plaintiff’s claim against him.  He also  denied  any representation  as to ownership of the subject  plot 1593 Phase II Ngwata Mavoko  as the same  was in line with the records  held by Movoko Development Company  Limited and that  it  was upon the plaintiff to exercise  due  diligence   to establish true  ownership of the property.  The 2nd defendant  contended  that he sold the plot as is where  it is  basis  and he  sold  the right  he held  in the plot which  the plaintiff  was aware of.

21. The defendants  therefore   contended  that the plaintiff’s claim  was  farfetched, non starter and an  afterthought  and sought   for  its dismissal.  All other  averments in the   plaint  were denied   and the  plaintiff put to  strict  proof thereof.

22. On 17th April  2015  the  plaintiff  filed reply  to defence  dated 14th April 2015  maintaining  what was pleaded in the plaint  and contended that the defence was therefore scandalous, vexatious, frivolous  and an abuse of the  process of court.  The plaintiff  also maintained   that the 1st   defendant misrepresented  to the  plaintiff that  the land  was genuinely owned  by the 2nd defendant  as per the certificate  of ownership  issued  by Mavoko Land Development Company Ltd  where the  1st defendant    was an employee.

23. With the above background to the cause of action  herein, I shall now proceed to  determine whether  the plaintiff’s application on the twin prayers  is meritorious.  Thus, whether this court should strike out  the defence  as prayed and enter judgment  on admission. Secondly, whether  the court should  strike   out the defence for being  frivolous, vexatious, scandalous  and otherwise  an abuse of  the court process.

24. Before I delve  into the  principles  established  and applicable  for striking  out pleadings   as  was espoused  in the D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & another [1980] eKLR case, I must  first and  foremost, indeed, acknowledge that having examined the sale  agreement  dated 8th January 2010  and the acknowledgment  of 6th July 2013, I am satisfied  that both  defendants were active  participants  to the transaction  for the sale  of the subject  plot 1593 Phase II Ngwata  to the plaintiff.  I also  find that indeed there  is documentary evidence  that the  said defendants  acknowledged  that the 2nd defendant never  owned the  plot in question and even accepted by  an agreement  dated 6th July 2013  to refund the plaintiff his purchase price and transfer  fees.  The  1st defendant  too undertook to refund to the plaintiff kshs 46,000/-.

25. However, there is this  very disturbing  aspect of the  suit that I must determine  first since  it would be futile  to strike out  the defence  however hopeless, only to leave  behind even a more  hopeless  plaint only amenable  to being  dismissed in limine, which  will not  serve any useful purpose  or at all.  Courts  of law do not act in vain. In this case, I can foresee a situation where I am likely to act in vain  unless i endeavour  to see  beyond  that the parties  are seeing.

26. Albeit  it is not denied  that indeed  there  was  a sale agreement  which  was  frustrated; and  that the plaintiff  developed  the purchased  plot only  for it to be  demolished  by the owner of the plot  thereof; and  that the defendants  undertook  to compensate  the plaintiff for the purchase  price  and other monies  paid for  transfer of the plot, strikingly, the plaintiff’s prayers   in his prayers in his plaint  do not  disclose  a cause of action  such that even if this court were to proceed  and strike out  the defence  as prayed  for whatever reason and enter   judgment  on admission,  the plaintiff would not  be  allowed to prove  what he had not pleaded.

27. The first prayer by the plaintiff is (1)  The full value   of the property demolished  on LR plot No. 1593  in Ngwata Phase III Mavoko  to be assessed or proved at the hearing.

28. Clearly, the full value of the property  demolished  was disclosed to be  shs  3,000,000 as per the valuation  report  and the agreement of 6th July 2013.  Since that full value was known  to the plaintiff before institution  of suit, the question is why  did he choose  not to  specifically plead it  or particularize it  in his plaint.

29. The law  on pleadings  is very  clear that  they must be clear and specific.  In addition, that   first prayer  discloses a special  damage  and not a general damage.  That being  the case, for  special  damages to be awardable, they  must not  only  be pleaded/specifically claimed /pleaded  but strictly proved. Further, where the special damage  is not specifically pleaded, the plaintiff  would not  be permitted to strictly prove  what had not been specifically pleaded.

30. In Waweru V Ndiga [1983] KLR 236 the Court of Appeal  was  emphatic  that:

“ Damages for loss  of use of  a vehicle  can be claimed  as special damages and not general  damages, and the loss suffered  should be  proved strictly.  The  respondent  in his plaint  had claimed  the damages, as  general damages and had set out  no particulars of their loss.”

31. As to what special damages  really  is, is found  in the writings  of Clerks and Lind Sell on Torts  13th Edition:

“If  there be special damage, which is s attributable to  the wrongful act, that special damage  must be  averred  and proved.  Special damage  on the other  hand, means, the particular  damage (beyond the general damage),which results from the particular  circumstances  of the case, and of  the plaintiffs’ claim to  be compensated  for which he  ought  to give  warning in his pleadings  in order that  there may be no  surprise  of the trial.”

32. From the above  authorities, special  damages  are particulars of specific damages  that are alleged to have been sustained  in the circumstances  of the  a particular wrong.  To be  awardable, special damages must  therefore be specifically claimed  and  strictly proved, for  they are not the direct natural or probable  consequences  of an act  complained of  and may  not be inferred  from the act. See also Blacks Law Dictionary 7th Edition; Ouma V Nairobi City Council [1976] KLR 297; and  KBS V Mayenda  [1991] 2 KAR 242 Nairobi CA 283/96.

33. Thus “Full value of the property demolished” and “expenses   incurred  in undertaking   developments”  is not  an unlimited claim.  The loss and or expenses  in undertaking developments must therefore  be particularized before an  attempt  can  be made to prove  them at the  hearing.  The above  analysis  is also applicable  to prayer  (b) of the “(special damages/expenses  subject  to proof).”

34. In this case, I reiterate  that the plaintiff/applicant  couched  special damages as if  they are unlimited/general damages which the court will  determine  after hearing  the plaintiff  assuming  the defendant’s defence  is struck out.

35. Regrettably, the plaintiff  cannot be  allowed to lead evidence to prove  what  he has not  specifically claimed.  In the absence of any specific sum of money pleaded under prayers a and b of the plaint, it would be a futile  exercise  if this court  were to strike out  the defendant’s defence  and proceeded to “assess” damages, which damages  ought to have  been specifically particularized  or quantified  such that the court would in essence  be entering  final judgment  for the plaintiff  since the claim is  for  admitted specific damages.

36. Although  the plaintiff’s counsel  attempted to ‘withdraw’ prayer No.  c for general damages, as the matter was not for hearing of the substantive suit  but an application to strike out   the defence and  or for judgment   on admission, this  court would  not be inclined to allow that  oral withdrawal of the prayer  in the plaint in an application seeking for  striking out of the defence.

37. Prayer (c) of the plaint is for general damages for   breach of   contract.  It is   now settled  law  that a party  to a contract  cannot seek  for general damages  for  breach of contract if those damages can be quantified.  In Joseph  Ungadi Kidera Vs Ebby Karigi  CA 239/97, the Court  of Appeal  per Kwach, Lakha  & Owuor  JJA put  it succinctly that :

“ As to the award of kshs  250,000 as general damages,  Mr  Andere submitted  that there  can be no general damages  for  breach of contract.  We respectively agree.  There can be no general  damages for breach of contract.”

38. In the instant case, it is trite that there was a sale  of plot agreement  which  was frustrated  by alleged  misrepresentation.  The defendants  owned up  and undertook in writing  to compensate  the  plaintiff  the loss.  That  loss is therefore   known, to put  back the plaintiff in the position  in which he originally was before  parting with his money towards  purchase of the plot that  never belonged  to the seller.  Where  there is breach of contract, the  plaintiff can enforce the terms of the contract   by seeking the  specific  values  admitted therein.

39. From my above analysis  and findings, it is my  humble  view that  what would  be up for  striking out is  the  plaint which is  poorly drawn such that even if the court  were to strike  out the defence,  the plaintiff would not  be in a position  to persuade this court with  any amount of evidence to enable it  enter  final  judgment in his favour.  Further, the plaintiff would not be allowed to seek to amend the plaint after the defence is struck out since that would amount to seeking to obtain justice through the backdoor. In seeking to have the defence struck out, it is assumed that the plaint is clear and perfectly flawless. Otherwise the plaintiff would be  chasing   a wild goose.  I must however  state that  he is lucky that his application  has unraveled  the fatalities/defects in his plaint.  He therefore  has an opportunity  to rectify the fatal errors  since  his suit  has not even been  certified  for the hearing.  He is  at liberty, if he  takes the cue from this ruling, to amend  with leave of court, his plaint.

40. For those reasons, I find that it would be irrational and  illogical to strike out a defence that is said to be scandalous, frivolous, vexatious and an abuse of the court process  and leave on record a plaint  which cannot  benefit  the plaintiff  and or benefit  from the order of striking out of the defence.

41. Having  so found, it would not be  appropriate  for this court  to strike  out the defendant’s defence  and enter judgment  based on  prayers  and or a claim which  is not clear  in itself  and therefore acting  in vain.

42. In addition, although  the plaintiff  maintained  that the defence raises  no triable  issue, in this case, the fact that  the plaint itself  raises doubt  before this court  as to whether  judgment  on admission  would serve  any purpose, and the  fact that   the plaintiffs pleadings are not in tandem with the alleged admission.  I would  hesitate to enter judgment  on admission as prayed.

43. Thus, as  was correctly set out  in Isaac Awoundo V Surgi Phanki Limited  & Another  [2011] e KLRthe citingMoi University V Vishval Builders Ltd CA 296/2014  Court of Appeal was clear that:

“ The law  is now settled  that if the  defence raises  even one  bona fide triable  issue, then the  defendant must be  given leave  to defend.  In this  appeal we  traced the history from the  commencement  of relationship  between the parties  herein.  The dispute arises  out of a  building  contract.  In the initial plaint  the sum claimed  was well  over 300 million but this   was scaled  down  by various amendments  until  the final figure claimed  was shs  185,305,0011. 30.  We have  looked at the pleadings and the history  of the matter and it would  appear to us that  the appellant  had serious  issues  raised in its  defence.  As we know even one  triable  issue would  be sufficient  See H.D. Hasmani V Banque  Du  Congo Belge [1938] 5 EACA 89.    We must however hasten to  add  that  triable  issue does not  mean  one that  will succeed.  Indeed, in Patel V EA Cargo Handling  Services  Ltd [1974] EA  75  at page 76 Duffus  P. said -

“ In this respect  defence on  the merits does not mean, in my  view  a defence   that must  succeed, it means as SHERIDAN  J put it  “a  triable  issue  is an issue which  raises  a prima facie  defence  and which  should go to trial for  adjudication.”

44. In  my view, the defence  filed on record by the defendants  is not as  frivolous and vexatious  or scandalous  as the plaintiff  would wish the court  to believe, having already found that  the plaint itself  was poorly  drafted  and therefore  the claim incapable of being  granted. Summarily, one such triable  issue  would be whether  the plaintiff incurred  any expenses   in undertaking developments  whose value   as per his  paragraph  10 of the plaint, he will be able to  provide  and or have it  assessed  at the hearing; besides  what he  described  as “massive  kshs  3,000,000 being the estimated  value of the  property  as at demolition date.”

45. In Postal Corporation of  Kenya  V Inamdar  page 365.  The Court of Appeal stated inter alia:

“……..The law  is now well settled that if the defence filed by a defendant raises even one  bona fide  triable  issue, then the defendant must be  given leave  to defend…….”

46. However, this is not  to say that  where, plainly speaking the defence  is a sham, then the court cannot strike it out, as  was stated  in Continental Butchery Ltd V Samson  Musila Ndua  CA  35/97andPatel V EA Cargo Handling Services Ltd [1974] EA 75 that:-

“ But  a trial should not be  ordered  in  a case   where the court strongly  feels   it is justified d in thinking that the defences  raised are  a sham.”

47. In the Continental Butchery Ltd  V Samson Musila Ndua (supra)  case the Court of Appeal stated that :

“ with a view  to eliminate  delay in the administration of justice which  would keep litigants out of their  just dues  or enjoyment of their  property, the court  is empowered  in an appropriate suit to enter  judgment for the claim from the  plaintiff under summary procedure  provided  by  Order 35  subject to there being no triable  issues which  would entitle  a defendant   leave to defend.  If a bona fide  triable  issue is  raised  the  defendant must  be given unconditional  leave to  defend but  not so in a case in which the court feels  justified  in thinking that the defences raised  are a sham.”  (see also Dhanjal Investments  Ltd  V Shabana Investments Ltd  CA 1232 of 1997 ( unreported ) .

48. I must mention that all the cases  cited by the plaintiff’s counsel  are very relevant   to the subject of summary procedure   and or  striking out pleadings which  are meant to delay the trial  of  a suit.  However, as I have stated above, the circumstances   of this case are  unique such that  if the court  were to strike out  the defence  then there would not be left any opportunity for  the plaintiff to enjoy any fruits  as the court would hesitate  to enter  judgment for a party in a claim which is highly defective  thereby defeating the  whole essence  of striking  out the  defence as the plaintiff would still, with  leave of court  have to amend the  plaint to disclose  a reasonable  cause of  action. That latter amendment of the plaint after the defence is struck out would be prejudicial to the defendants. A court of law ought not to do an injustice to any party.

49. The upshot of all the above is that I decline to grant to the plaintiff the orders  sought in his application.  In its place, and  espousing  the principles of the overriding objectives  of the law to  have disputes  determined  without  delay and in  an effective,  efficient and cost effective manner, I exercise the unfettered discretion conferred  upon me by the provisions of Section  100 of  the civil Procedure  Act and Order  8 of the Civil  Procedure  Rules as  well as  the inherent  jurisdiction  under Section 3A of the Civil Procedure  Act’ and in order to do justice   to this case; for the court to determine the real issue  in controversy, I  grant the  plaintiff leave of  14 days from the date  hereof  to amend, file and serve upon  the defendants  a duly amended  plaint.  The defendants   have corresponding leave of 14 days to file their amended defence and serve the plaintiff.  Costs of the application and for  amendments  ordered shall  be in the cause.

Dated, signed and delivered in open court   at Nairobi this 22nd day of March 2016.

R.E. ABURILI

JUDGE

In the presence of Miss Kirui holding brief for Mr Arusei for the plaintiff/applicant

Mr Nzavi for defendants/respondents

Gitonga: Court Assistant