POWERS OF THE COURT TO STRIKE OUT PLEADINGS LECTURE 9: STRIKING OUT PLEADINGS POWERS OF THE COURT TO STRIKE OUT PLEADINGS

Striking out Pleadings– 0.2 r.15 The court is clothed with wide and ample powers, which are useful for enforcing the formal requirements of pleadings This power is conferred on the court so that it can compel parties to comply with the rules of pleadings The source of the powers is found in O. 2 R. 15 The powers are discretional and they are under the inherent jurisdiction of the court.

R.15 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 pleading on the grounds that It discloses no reasonable cause of action or defence; It is scandalous, frivolous and vexatious. It may prejudice, embarrass, or delay fair trial. It is an abuse of the process of the court. In applications to strike out usually no oral evidence is admissible r.15(2)

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 are fatal and thus not curable, this is 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 plaintiff an opportunity to be heard.

The guideline before the court can exercise the discretion is for e. g The guideline before the court can exercise the discretion is for e.g. that if it is striking it out on the ground that there is no reasonable cause of action, the cause of action must be inconsistently bad. It has to be beyond doubt unsustainable.  If the power is so delicate to exercise then why have it? The power is supposed to promote justice; it prevents parties from vexing others it also prevents a situation where the defendant is trying to deny liability. You must specifically set out the ground under which you make the application to strike out, i.e., is it an abuse of the court process, or is it scandalous and vexatious.

No reasonable cause of action r.15(a) The cause of action must be one recognised by the laws of Kenya i.e. it must be based on some statutes, the common law of Kenya or the English Common Law as adopted by the reception clause If not supported by any law in Kenya, it must be automatically struck out

Scandalous, frivolous or vexatious r.15(b) Scandalous is a matter, which is irrelevant to the issues of the case and casts aspersions or is abusive of. If pleadings state indecent or offensive words about the other party they can be said to be scandalous, and moreover if such pleadings are unnecessary then they are termed as irrelevant to the case

Pleadings are vexatious if they are not bona fide or when they are hopeless, oppressive and tending to cause unnecessary expenses and anxiety on the other party. A case can be said to be frivolous when it is a waste of the court’s time and everybody else’s time. When it is not capable of sustaining a reasonable argument in court.

In the MacDougall Case the court held that pleadings are frivolous if: It is without foundation; When it cannot possibly succeed; When the action or the defence is raised only for annoyance or some fanciful advantage; When it can lead to no possible good

Abuse of the process of the court r.15(d) 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. The overriding objectives of the court demand of it

Prejudice, embarrass or delay the fair trial r.15(c) If pleadings are vague, ambiguous, unintelligible, raise immaterial matters, when pleadings do this they prejudice and delay fair trial. There must be proper pleadings where issues come out clearly and in separate paragraphs and the defence should answer paragraph per paragraph