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Mohamed Mohamed Hatimy v. Lameck Olouch t/a Lamathe Hygenic Foods

(2019) JELR 99009 (CA)

Court of Appeal  •  Civil Appeal 93 of 2018  •  7 Mar 2019  •  Kenya

Coram
Alnashir Ramazanali Magan Visram, Wanjiru Karanja, Patrick Omwenga Kiage

Judgement

JUDGMENT OF THE COURT

1. In as much as the power to strike out pleadings by a court is discretionary, it should be exercised sparingly and only in the clearest cases. This is because the consequence of striking out a pleading is that a court does not subject the parties’ dispute to a full hearing. It follows, therefore, that whenever a court is faced with the question of whether or not to strike out a pleading, it has to strike a balance between two competing rights; on one hand, a party’s right to have his/her case determined in a full trial and on the other, an opposing party’s right not to be unduly burdened with a suit which is otherwise a non- starter. This much was appreciated by this Court in Kivanga Estates Limited v. National Bank of Kenya Limited [2017] eKLR.

2. This is the position that the learned Judge (Yano, J.) found himself in when the appellant by an application dated 6th April, 2017 in E.L.C No. 278 of 2017 sought, inter alia, an order striking out the respondent’s sta…

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