POWER OF THE COURT TO STRIKE OUT PLEADINGS

Question 1

ON WHAT GROUNDS IS A COURT ALLOWED TO STRIKE OUT PLEADINGS?

Answer 1

Under Order 2, Rule 15, CPR, the court may at any stage of the proceedings order to be struck out or amended any
pleadings in an action, or anything in any pleadings on the grounds that:
a) It discloses no reasonable cause of action or defence;
b) It is scandalous, vexatious and frivolous;
c) It may prejudice, embarrass or delay fair trial; or
d) It is an abuse of the process of the court

Question 2

MENTION FOUR FACTS ABOUT STRIKING OUT PLEADINGS?

Answer 2

• In applications to strike out, usually no oral evidence is admissible (Order 2, 15(2), CPR) * The power of striking out is a summary process without a trial
• The court has the power not only to strike out but they can order that certain pleadings be amended if they are curable
• Some pleadings maybe fatal and thus not curable – this is therefore a discretionary power that the courts are supposed to
  exercise judiciously and is supposed to be used in very clear-cut cases (because you are throwing out a case without
  affording the party an opportunity to be heard)

Question 3

MENTION EXAMPLES OF CASE LAW THAT DEAL WITH PLEADINGS BEING STRUCK OUT

Answer 3

Dobie & Company v
Muchina
This is the locus classicus in matters relative to striking out of pleadings
a) The Court should not strike out suit if there is a cause of action with some chance of success;
b) The power to strike out suit should only be used in plain and obvious cases and with extreme
caution;
c) The power should only be used in cases which are clear and beyond all doubt;
d) The Court should not engage in a minute and protracted examination of documents and facts; and
e) If a suit shows a semblance of a cause of action, provided it can be injected with real life by
amendment, it ought to be allowed to go forward
Raila Odinga & 5 Others
v IEBC & 3 Others
The Supreme Court held that Article 159 (2) (d) of the Constitution is not a panacea for all procedural
shortfalls, it is plain (to us) that Article 159(2) (d) is applicable on a case to case basis
Karuturu Networks
Limited v Dally Figgis
Advocates
The application of the overriding objective principle does not operate to uproot the established
principles and procedures but to embolden the court to be guided by a broad sense of justice and
fairness and that in interpreting the law or rules made there under, the court is under a duty to
ensure that the application or interpretation being given to any rule will facilitate the just, expeditious,
proportionate and affordable resolution of appeals
Wenlock v Moloney The power to strike out any pleading or any part of a pleading under this rule is not mandatory; but
permissive and confers a discretionary jurisdiction to be exercised having regard to the quality and all
the circumstances relating to the offending pleading
This summary jurisdiction of the court was never intended to be exercised by a minute and a
protracted examination of documents and the facts of the case in order to see whether the plaintiff
really has a cause of action. To do that is to usurp the position of the trial judge and to produce a trial
of the case in chambers, on affidavits only, without discovery and without oral evidence tested by
cross-examination in the ordinary way