Striking Out Pleadings (KENYA)

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Many cases never reach the trial stage. A suit may be disposed before trial trough the striking out pleadings.

Striking out pleadings is the request by one party to remove part or all of the opposing party’s pleadings before the court. Motions of striking out pleadings may come from either the plaintiff or the defendants.

The power of striking our pleadings is a process without trial. Therefore, the affected party is placed in the same position they were before the case was brought before the court.

The court has powers to not only dismiss a suit or enter judgement accordingly but it may also exercise its powers to order the suit be stayed and pleadings be amended if curable. These amendments should not be prejudicial to the opposing side.

Habib Jaffer Manji v. Vir Singh [1962] E.A. 557 (CA-K)
Amendments sought before the hearing should be freely allowed, if they can be made
without injustice to the other side.

However, some pleadings are fatal, thus not curable. (Skyer vs Artichec)

An application for amendment may be denied if it introduces a new cause of action.

Hagod Jack Simonian v. Johar [1962] E.A. 336 (CA-K)
Application for leave to amend plaint refused so far as would introduce a new cause of
action – allowed when sought to plead an acknowledgment to show plaint not barred
by limitation.

African Overseas Trading Co. Acharya [1963] E.A. 468 (T)

Leave to amend will be refused where a plaintiff seeks to add a new cause of action
which is inconsistent with his pleading and his evidence.

The court uses its powers to enforce the formal requirement of pleadings. The objective of this power to strike out pleadings is meant to promote justice by preventing vexation of parties or to prevent defendants who try to deny liability.

An application for striking out of pleadings may be made at any stage of the proceedings.

Eastern Bakery v. Castelino [1958] E.A. 461 (CA-U)
Amendment may be allowed at a very stage, where it is necessitated solely by a
drafting error and there is no element of surprise.

British India General Insurance Co. Ltd. v. G.M. Parmar & Co. [1966] E.A. 172 (CA-K)
An oral application to amend made during the trial may be allowed.

However, the court directs that the application be made:

a) at an early stage

b) promptly

N.A.S. Airport Services v. A.G. Kenya [1959] E.A. 53 (CA-K)

An application to have a pleading struck out should always be made promptly by
motion – a party should not sit by and do nothing until the trial and then apply.

c) without delay

d) before the close of pleadings

Striking out pleadings in Kenyan cases are under Order 2, Rule 15 of the Criminal Procedure Code.

To strike out pleadings, one must have reasonable grounds. Order 2, Rule 15 states that the court may at any stage of the proceedings order to be struck out or amend any pleadings in an action in any pleading on the grounds that:

a) it discloses no reasonable cause of action or defense in law

b) it is scandalous, frivolous or vexatious

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

d) it is an abuse of the process of the court

a) No reasonable cause of action

The cause of action may be one recognized by the laws of Kenya i.e it is based on the Kenyan Constitution, Kenyan statutes, the common laws of Kenya or statues of general application. If it is not supported by any law, it must be automatically struck out.

Rondel vs Worsley [1969] 1 AC 191

The plaintiff obtained the services of the defendant who was a barrister to defend him in a case. A barrister is a type of lawyer in common law jurisdictions. The plaintiff alleged negligence in the conduct and management of his case. The barrister(advocate) did not speak up where his client felt was necessary. The court held that the barrister enjoyed immunity during his actions within judicial proceedings, therefore, he could not be held liable due to privilege. Hence, no cause of action and the pleadings were struck out.

Comb Case

In the Comb case, this was an action by a passenger against a railway company for failing to detain and search a train after he complained that a gang that was in the train had robbed him apparently.  The court held that there was no reasonable course of action they were under no obligation to do so.

Shaw vs Shaw

This was an action to recover payment which appeared from the statement of the claim or rather in the plaint to have been made in contravention of the Exchange Control Act it was therefore illegal.  The action was based on an action that was in contravention of the Exchange Control Act. It was not a reasonable course of action.

Drummond Jackson v British Medical Association [1970] 1 WLR 688

The plaintiff was a dentist who developed a new technique for dental anesthesia.  The defendant published a libelous critique of this dental procedure in its daily newspaper, stating it as dangerous. A reasonable cause of action, according to Pearson LJ, connotes a cause of action which has some chance of success when only the allegations in the pleading are considered. The test of the court was to determine whether the statements made by the newspaper written on the pleadings amounted to defamation. The defense stated that the words were a critique of his technique but not the dentist’s skill or character. However, the plaintiffs stated that the dentist’s technique is part of him as skill and character. therefore, it was held that the statements were libelous.

In applications to strike out, no evidence is admissible (Order 2, Rule 15(2)). You cannot make an application to strike out pleadings then call witnesses or produce documents to prove there is no cause of action.

One should not confuse slim chance of successes with no reasonable cause of action or defense.

Cottar v. A.G. Kenya (1938) 5 E.A.C.A. 18 (CA-K)
A plaint ought not to be struck out merely on the ground that the plaintiff is not likely
to succeed on it.

b) Scandalous, Frivolous and Vexatious 

i) Scandalous

A pleading is scandalous when it is abusive, indecent, offensive, degrading, prejudicing or charges the other party in bad faith. A pleading may also be scandalous if unnecessary matters or matters within the pleading are necessary but are accompanied by unnecessary details.

J.P Machira & Company Advocates vs Wangethi Mwangi & Nation Newspapers (1997)

Mr J.P Machira was a prominent lawyer, Wangethi Mwangi was the editor of Nation Newspapers. Mr J.P Machira auctioned a suit against the editor and Nation Newspapers for publishing a photo the plaintiff with an angry woman holding him by the collar of his shirt. This woman was the plaintiff’s client and the caption on the photo made it seem that his client was unhappy with is advocate services. The plaintiff auctioned the suite against the editor and the newspaper for libel. He stated that the woman pictured was not his client and they were not fighting over money. The dispute was that of a vendor and purchaser over an agreement of sale of a piece of land. The defendants stated this in an apology they published in their newspaper but later denied this in their defense plaint. The plaintiff moved to have the defendant’s pleadings struck out. It was accordingly scandalous, frivolous and vexatious and an abuse of the process of the court for the respondents to insist in their statement of defense that the woman pictured was a client of the appellant and they were fighting over money.During judgement, the court stated that words scandalous is not limited to indecent, offensive and improper. The denial of a well known fact can be rightly defined as scandalous. But they may not be scandalous if the matter, however scandalizing, is relevant and admissible  on evidence in proof of the allegation in the plaint or defense.

ii) Frivolous 

Pleadings are frivolous when they have no substance, are fanciful or are not capable of reasonable argument. They are brought for the mere annoyance of the other party and waste the court’s time. In Bullen vs Leake & Jacob’s Proceedings (12th Edition) pg 145, a pleading/ action is frivolous when without substance, groundless or fanciful and is vexatious when it lacks bonafide, when it’s hopeless or offensive, tends to cause opposing party unnecessary anxiety, expenses and trouble.

iii) Vexatious

Willis vs Earl Beauchamo (1886) 11 PD 59

In the case, it was stated that a matter is vexatious when it has no foundation, no chance of succeeding, the defense (pleading) is brought merely for purposes of annoyance, it is brought so that the party’s pleading has some fanciful advantage or where it can really lead to no possible good.

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

i) Prejudice

Harm or injury that results or may result from some action or judgement.

ii) Embarrass

A pleading my be embarrassing if it ambiguous, unintelligible, raises immaterial matter, enlarges issues or creates more trouble.

iii) Delay fair trail of the action

Delay fair trial of the action when it is evasive, obscurer or conceals the parties. The defendant does not say how much of claim he admits and how much he denies..

d) Abuse of the process of court

The process of the court must be carried out properly honestly and in good faith.  Therefore the court will not allow its functions as a court of law to be misused for oppression, or in bad faith.

For example, in the Brooking Case the court considered the meaning of scandalous.  In this case the Plaintiff in his plaint had made allegations of dishonest conduct against the defendant but stated in his reply that he sought no relief on that ground.  The court held that the allegations were unnecessary and therefore scandalous and were ordered to be struck out.   The court also held that the grounds were frivolous since they were merely intended to make the plaintiff look bad.

In Mac Dougall Case – in this case the plaintiff brought a second action upon some defamatory statement in a publication that had already been decided to be fair and an inaccurate report.  The court held that the second action was inter alia frivolous and vexatious.  It was baseless since there was already a decision of court on it and further that a plea of Res Judicata would succeed.  The court went on to state what is frivolous  ‘a case is frivolous if

  1. It is without foundation and;
  2. When it cannot possibly succeed.
  3. When the action or the defence is raised only for annoyance or some fanciful advantage.
  4. When it can lead to no possible good.

British Railway Board

The Plaint stated that a certain section in a private Act of Parliament was ineffective because it was obtained improperly by misleading Parliament.  The court held that the functions of the court are to consider and apply enactments of parliament and not to assess propriety of proceedings in parliament.  The court held that it had to uphold its decision that the case was frivolous and vexatious.


This was an action against a member of parliament for not presenting a certain petition to the House of Commons.  The court said it was frivolous as there was no obligation on that Member of Parliament.

Waller Steiner

It was an action for libel where the Plaintiff’s conduct clearly showed that he had no intention of bringing the suit to trial.  In fact it was found that this was merely to put a gag on his critics.  The case was struck out because the entire suit was a sham.