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 and the practice of the court’s relating thereto. The source of the powers is found in Order 2 Rule 15. The powers are discretional and they are under the inherent jurisdiction of the court.
Rule 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
a) It discloses no reasonable cause of action or defence;
b) It is scandalous, frivolous and vexatious.
c) It may prejudice, embarrass, or delay fair trial.
d) It is an abuse of the process of the court.
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 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 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, is it an abuse of the court process, is it scandalous and vexatious.
NO REASONABLE COURSE OF ACTION
First 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. In Applications to strike out usually no evidence is admissible as in oral evidence is not admissible at that stage. You cannot make an application to strike out and then call witnesses to come and prove that there is no cause of action.
One should not confuse slim chance of success with no reasonable cause of action or defence.
Suppose the plaintiff brings a suit based on contract and they are claiming that there is breach of contract, suppose it is an illegal contract? This is an obvious case since it is illegal it is not supported by statutes and it can be immediately be struck out. Law does not protect it.
Rondel V. Worsley – this was an action against an advocate for alleged negligence in the conduct of the case in court. They didn’t speak up and things like that and the case of law, this was an action against a Magistrate for slander and the words complained of were spoken in the course of judicial proceedings.
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.
In the Shaw V. 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.
The Drummond – This was a libel action. The plaintiff had developed a new technique of dental anaesthesia and what transpired after that was that there was a critique which attacked the new dental procedure. The Dentist instituted a suit against the British Medical Association that they had slandered him.
SCANDALOUS, FRIVOLOUS & VEXATIOUS:
Order 2 Rule 15
Scandalous is a matter, which is irrelevant to the issues of the case and casts imputations or is abusive of. If things state indecent or offensive words about the other party they can be said to be scandalous or moreover if they are unnecessary or have made charges of misconduct on a party that is not relevant to the case.
Frivolous and vexatious – pleadings are vexatious if they lack 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.
3.ABUSE OF THE PROCESS OF THE 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.
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.
3.EMBARRASS, PREJUDICE OR DELAY FAIR TRIAL
For instance 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.