Legal Guides

Striking Out Pleadings in Kenya: Order 2 Rule 15 Applications

An application to strike out a pleading asks a Kenyan court to end all or part of a case without a conventional trial. The court may remove a plaint, defence, counterclaim or a particular passage where the pleading falls within Order 2 rule 15 of the Civil Procedure Rules. Because the order can deny a party the opportunity to prove its case through witnesses and disclosure, it is reserved for clear situations. A weak case is not automatically a case that should be struck out.

The practical question is whether the defect is fatal on the material the court is permitted to consider, or whether it can be cured by amendment and tested at trial. Applicants need to select the correct statutory ground, use the correct evidential route and identify the precise order sought. Respondents need to show a recognisable cause of action or defence, explain any factual dispute and propose amendment where that will cure the problem.

The four grounds under Order 2 rule 15

Order 2 rule 15 of the Civil Procedure Rules, 2010 permits the court, at any stage of proceedings, to strike out or amend a pleading on four grounds. The pleading may disclose no reasonable cause of action or defence in law; it may be scandalous, frivolous or vexatious; it may prejudice, embarrass or delay the fair trial of the action; or it may otherwise amount to an abuse of the court process. Depending on the defect, the court may stay or dismiss a suit, enter judgment, strike out only part of the pleading, or direct amendment.

These grounds overlap in everyday language but they are not interchangeable. “No reasonable cause of action or defence” focuses on the legal sufficiency of the pleaded facts. A scandalous pleading introduces improper or irrelevant allegations that may unfairly damage a party. A frivolous or vexatious pleading lacks serious purpose or is brought to harass. A pleading that prejudices or embarrasses a fair trial may be so vague, contradictory or unnecessarily prolix that the opponent cannot know the case to answer. Abuse of process is broader and protects the court from proceedings used for an improper purpose or in a manner inconsistent with the fair administration of justice.

An application should state which paragraph, pleading or suit is challenged and link each complaint to a specific limb of rule 15. Reciting all four grounds without analysis creates uncertainty about the evidence the court may receive and the legal test it should apply. The notice of motion, supporting material and proposed order should use the same structure.

No reasonable cause of action or defence

Under rule 15(1)(a), the court asks whether the pleading, read fairly and as a whole, reveals an arguable legal claim or defence. The pleaded facts are generally assumed to be true for this limited exercise. The court is not choosing between competing evidence or deciding whether a witness will be believed. A plaint may be defective if, even on its own allegations, an essential legal element is missing. A defence may be vulnerable if it consists only of general denials and identifies no factual or legal answer to the claim.

Order 2 rule 15(2) imposes a critical evidential restriction: no evidence is admissible on an application made under paragraph (a), and the application must state its grounds concisely. The court examines the pleading itself and the applicable law. An applicant who relies on contracts, correspondence or contested facts to prove that the pleading is false is no longer making a pure paragraph (a) argument.

This does not mean every poorly drafted pleading must disappear. A cause of action can sometimes be made intelligible by particulars or amendment. The applicant should explain why the defect is incurable, while the respondent should identify the amendment that would supply the missing element. If the proposed cure creates an entirely new, time-barred or legally unavailable claim, amendment may not save the pleading.

Scandalous, frivolous, vexatious or embarrassing pleadings

The other grounds are concerned with the pleading’s content and effect in the litigation. Allegations are not scandalous merely because they are serious or damaging. They become objectionable when they are irrelevant to an issue, inserted for an improper purpose or expressed in a way that needlessly attacks character. Fraud, dishonesty and bad faith may be pleaded where legally relevant, but they require proper particulars and should not be used as rhetoric.

A frivolous pleading may be one that has no substance or practical legal purpose. A vexatious pleading may impose unnecessary trouble and expense without advancing a legitimate dispute. Repetition of a claim already finally determined, pursuit of incompatible relief after a binding election, or a pleading designed only to obstruct another proceeding can support an abuse argument. Yet the label “vexatious” is not a substitute for proof. The applicant must show the procedural history and identify the improper consequence.

A pleading prejudices, embarrasses or delays a fair trial when its defects prevent the other party and the court from identifying the real issues. Examples may include contradictory versions left unexplained, material allegations mixed with evidence and commentary, a defence that does not answer pleaded particulars, or a counterclaim whose parties and relief cannot be understood. Before seeking termination, consider a request for particulars, case-management directions or amendment. A narrower cure is often proportionate.

The strict threshold applied by Kenyan courts

Kenyan courts consistently describe striking out as a drastic remedy. In Daniel & another v Reinhard & 3 others [2023] KECA 969, the Court of Appeal restated that pleadings may be struck out or amended under Order 2 rule 15 and applied the long-standing caution against summarily ending a case that is not plainly hopeless. The court should not conduct a trial on affidavit or make final findings on contested facts at this stage.

Prime Bank Limited v Tanna [2023] KEHC 1058 similarly discusses the discretion under rule 15 and the principle that a pleading should not be struck out where it can be redeemed by amendment. The existence of a single genuine issue may justify preserving a defence for trial, although a bare denial that identifies no issue will not necessarily do so.

The threshold protects both sides. It prevents defendants from forcing a claimant through trial where the plaint is legally incapable of success, but it also prevents a summary application from becoming a shortcut around disclosure and cross-examination. The court may distinguish between an improbable claim, which a party is ordinarily entitled to attempt to prove, and an impossible claim that remains defective even if every pleaded fact is accepted.

Evidence: choose the ground before preparing affidavits

The evidence rule is a frequent source of avoidable error. A pure application under rule 15(1)(a) should not be supported by evidence proving the merits. Its grounds should be concise and should demonstrate the legal defect from the challenged pleading. Where the application also relies on paragraphs (b), (c) or (d), evidence may be necessary to establish the procedural history, repetition, improper purpose or practical prejudice.

Regine Butt v Haroon Butt & another [2015] KEHC 6143 records both the no-evidence rule for paragraph (a) and the court’s power to direct amendment instead of striking out. The lesson is practical: do not combine a pure legal objection with extensive factual evidence without explaining the separate grounds. If evidence is filed for permissible grounds, organise it so the court can see what supports abuse or prejudice and what is not relied on for paragraph (a).

A respondent should object promptly if an applicant uses disputed affidavit evidence to prove that a pleading discloses no reasonable case in law. At the same time, the respondent should answer any evidence properly filed under the other limbs. Ignoring the affidavit entirely because paragraph (a) is cited can be dangerous where the motion also alleges abuse of process.

Striking out a plaint and striking out a defence

An application against a plaint should analyse every material cause of action and prayer. If only one claim is defective, the court may remove that claim and preserve the rest. Check jurisdiction, limitation, statutory preconditions, legal standing, parties, material facts and the connection between those facts and the relief. A limitation objection may sometimes be clear on the face of the pleading, but a dispute about accrual, disability, acknowledgment, fraud or extension may require evidence and trial.

An application against a defence should identify admissions, denials and affirmative defences paragraph by paragraph. General denials may be insufficient, but the court looks at the defence as a whole. A short pleading may still raise a genuine issue about authority, payment, performance, limitation, set-off or construction of a contract. If the real contention is that no triable issue exists in a liquidated debt or qualifying land claim, compare the separate requirements in our guide to summary judgment in Kenya. Order 36 and Order 2 rule 15 have different gateways and evidential rules.

Where a defence is struck out, the applicant should identify the consequential order sought. Judgment does not always follow automatically for every head of relief. Unliquidated damages may still require formal proof or assessment. Interest, costs and the form of decree should be addressed separately rather than assumed.

Amendment, particulars and a proportionate remedy

Rule 15 expressly allows the court to order amendment. That matters because the objective is a fair determination of the real controversy, not punishment for imperfect drafting. The respondent should therefore attach or describe a focused proposed amendment showing how the defect will be cured. A vague promise to amend later carries less weight than a draft that introduces the missing material facts without unfairly changing the case.

The applicant should test whether a less final remedy would protect the fair trial. Removing scandalous paragraphs, ordering particulars, separating issues, disallowing an irrelevant defence or imposing a timetable may be sufficient. If delay or non-compliance is the real complaint, use the procedural rule that addresses that default. Striking out under Order 2 rule 15 should not be used to avoid the standards governing dismissal for want of prosecution or sanctions for breach of directions.

Amendment is not unlimited. The court will consider prejudice, delay, good faith, limitation and whether costs can fairly compensate the opponent. A proposed amendment that contradicts an admission, substitutes an unrelated transaction or defeats an accrued limitation defence requires close scrutiny. The parties should distinguish prejudice caused by having to answer a proper case from prejudice that cannot be cured by costs or directions.

How to prepare the application

1. Obtain the complete court file, including the current pleadings, amendments, orders and previous rulings.
2. Mark the exact paragraphs challenged and select the applicable limb of Order 2 rule 15 for each.
3. For paragraph (a), prepare concise legal grounds from the pleading without affidavit evidence on the merits.
4. For paragraphs (b), (c) or (d), assemble admissible material proving the alleged prejudice, repetition or abuse.
5. Address whether particulars or amendment could cure the defect and why the order sought is proportionate.
6. Draft the consequential orders precisely: amendment, partial striking out, stay, dismissal, judgment, formal proof, interest or costs.
7. Serve the motion and supporting material in accordance with the court’s directions and preserve proof of service.

The written submissions should separate the legal threshold from the merits of the suit. A chronology helps where abuse or repetitive proceedings are alleged. A comparison table can identify the challenged paragraph, statutory ground, supporting material and proposed order. Avoid turning submissions into evidence that was not placed before the court.

How to respond without trying the whole case

Start with the notice of motion and identify which limbs are actually invoked. If the challenge is under paragraph (a), demonstrate the legal ingredients in the existing pleading and explain why evidence is unnecessary. If the challenge relies on other limbs, answer the factual assertions with a short, properly exhibited record. Do not file the entire trial bundle unless it is needed to rebut the procedural allegation.

Identify each genuine issue requiring a trial and the paragraph where it is pleaded. If the pleading is unclear, prepare a draft amendment. Explain why cross-examination, disclosure or expert evidence is needed before the disputed question can fairly be decided. If only one paragraph is objectionable, invite the court to remove or amend it instead of terminating the suit.

Check the hearing date, filing directions and electronic filing status immediately. Failure to respond can allow the motion to proceed on an incomplete record. If judgment or dismissal is entered after non-attendance, prompt steps may be necessary. The principles and evidence for reopening a default outcome are discussed separately in our guide on setting aside a default judgment.

Documents and issues for an advocate to review

• the latest plaint, defence, reply, counterclaim and every amendment;
• the notice of motion, grounds, affidavits and exhibits;
• orders and rulings made earlier in the same or related proceedings;
• material showing related litigation, settlement, discontinuance or final determination;
• the contract, statute or legal instrument on which the pleaded right depends;
• a limitation and jurisdiction analysis;
• a paragraph-by-paragraph schedule of the alleged defect and response;
• a draft amendment or particulars, where a cure is available;
• proof of service and the current procedural timetable; and
• the proposed form of consequential order and costs position.

Striking out can dispose of hopeless litigation, but an overbroad motion may increase cost and delay while revealing that the dispute needs a trial. If you are considering an Order 2 rule 15 application, or your plaint or defence is under challenge, ask a Kenyan advocate to review the exact pleading, selected ground, evidence rule and available amendment before the response deadline. A focused early review can preserve an arguable case, remove a genuinely abusive pleading, or narrow the dispute without unnecessary interlocutory proceedings.