LEGAL OPINION: ICTA

I. Application to strike out suit.

1. An application to strike out the suit was made by way of notice of motion dated
6th July 2016 which application was supported by the supporting affidavit of
Robert Mugo on the grounds that:
 The suit is frivolous, scandalous, and vexatious
 That the suit is an abuse of the law and court process
2. The grounds that are relied above are set out under Order 2 rule 15 of the civil
procedure rules which states:
(1) At any stage of the proceedings the court may order to be struck out or
amended any pleading on the ground that—
(a) it discloses no reasonable cause of action or defence in law; or
(b) it is scandalous, frivolous or vexatious; or
(c) it may prejudice, embarrass or delay the fair trial of the action; or
(d) it is otherwise an abuse of the process of the court,
and may order the suit to be stayed or dismissed or judgment to be entered
accordingly, as the case may be.

Whether the suit is frivolous, scandalous and vexatious

3. What is frivolous and vexatious was defined by Ringera J in the case of Trust
Bank Limited v Amin Company Ltd & Another (2000) KLR 164 as:
“A pleading or an action is frivolous when it is without substance or groundless or
fanciful and is vexatious when it lacks bona fides and is hopeless or offensive and
tends to cause the opposite party unnecessary anxiety, trouble or expenses. A pleading
which tends to embarrass or delay fair trial is a pleading which is ambiguous or
unintelligible or which states immaterial matters and raises irrelevant issues which
may involve expenses which will prejudice the fair trial of the action”
4. The dispute revolves around the issuance of irregular bid bonds contrary to
Clause 41.2.1 of the contract with the plaintiff and fraudulent Advance Payment
 Guarantee dated 9th January 2015. The same cannot be termed as being frivolous
as it raises legitimate question as to the circumstances surrounding the contract.
5. The second limb of Order 2 rule 15(b) provides that pleadings could be struck
out if they are scandalous, one of the grounds on which the application is
premised.
6. What is scandalous was defined by G.V Odunga J in Kiama Wangai V John N.
Mugambi & Another [2012] eKLR, as: “…the word “scandalous” for the purposes of
striking out a pleading under Order 2 rule 15 of the Civil Procedure Rules is not limited
to the indecent, the offensive and the improper and that denial of a well-known fact can
also be rightly described as scandalous.
7. We opine, owing to the letter from the DPP that absolved the plaintiff from the
fraudulent issuance of the Advance Payment, that the proper place to conduct
investigations would be during the hearing of this matter.
8. It is our opinion therefore that both the Plaintiff and Defendant have raised
legitimate concerns in their pleadings and suit cannot be termed as a frivolous,
vexatious and scandalous.

Whether the suit is an abuse of law and court process

9. It was stated in P Machira vs. Wangechi Mwangi vs. Nation Newspapers Civil
Appeal No. 179 of 1997 that a suit is an abuse of the process where it is frivolous
or vexatious or both...”
10. The general approach by courts in applications to strike out suit is captured by
the Court of Appeal in DT Dobie & Company (Kenya) Ltd v. Muchina, where it
observed:-
…… “The court should aim at sustaining rather than terminating a suit. A suit should
only be struck out if it is so weak that it is beyond redemption and incurable by
amendment. As long as a suit can be injected with life by amendment, it should not be
struck out… (a) that the remedy that should only be exercised in the clearest of cases, in
 plain and obvious cases where the pleadings in question were unsustainable; (b) it is a
power to be exercised with extreme caution and that it is a strong power to be sparingly
exercised...”
11. We are of the view that the suit is properly before the court and the court will
not allow the application.

II. The options available to solve the dispute

12. The contract, under clause 45 contained an arbitration clause.
45.1 Any dispute between the parties arising under or related to this contract that cannot
be settled amicably may be referred to by either party to the adjudication/ arbitration in
accordance with the provisions specified in SCC.
13. The parties could agree to withdraw the matter from court and seek to have the
matter determined by an arbitration tribunal. This will save the parties the long
and tedious process of litigation before the court bearing in mind that the
funding by world bank is set to be stopped at the end of 2016

III. The practical steps to obtain a favorable outcome

14. The investigations could be reopened if the DPP is petitioned with the facts of
the alleged concealment of the material facts. Under Section 5(1) of the Office of
the Director of Public Prosecutions Act the DPP has power to direct the
Inspector General to investigate any information or allegation of criminal
conduct and the Inspector General shall comply with any such directions.
15. The commission maintains that the report of the DCI was based on perjury and
deliberate concealment of facts by the respondent with the intention of obtaining
a clearance.
16. We advise that a follow up be done with the DPP`s office, and furnish with them
with new reports
IV. Recommendations on disposing the matters in dispute
17. Owing to the nature of the dispute and taking into account the World Bank
Deadline for the funding of the project, which is 31st December 2016, barely two
months away, the authority could consider an out of court settlement since the
suit might lead to losses to both parties.