2 provides 2 no evidence shall be admissible on an

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(2) provides: “(2) No evidence shall be admissible on an application on sub-rule (1)(a) but the application shall state concisely the grounds on which it is made.” The court ought to act very cautiously and carefully and consider all facts of the case without embarking upon a trial thereof before dismissing a case for not disclosing a reasonable cause of action or being otherwise an abuse of the process of the court. At this stage, the court ought not to deal with any merits of the case for that is a function solely reserved for the judge at the trial as the court itself is not usually fully informed so as to deal with the merits “without discovery, without oral evidence tested by cross-examination in the ordinary way.” (Sellers LJ (supra)). As far as possible indeed, there should be no opinions expressed upon the application which may prejudice the fair trial of the action or make it uncomfortable or restrict the freedom of the trial judge in disposing of the case in the way he thinks right. If an action is explainable as a likely happening which is not plainly and obviously impossible, the court ought not to overact by considering itself in a bind summarily to dismiss the action. A court of justice should aim at sustaining a suit rather than terminating it by summary dismissal. Normally a law suit is for pursuing it. No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action and is so weak as to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a court of justice ought not to act in darkness without the full facts of a case before it. On the other hand, if there is a point of law which merits a serious discussion, the court should be asked to proceed under Order XIV rule 2. In the instant case before us, the second defendant’s application stated that the plaint disclosed no cause of action against the second defendant while the rule provides that a pleading might be struck out, not on the ground that it discloses no cause of action, but on the ground that it discloses no reasonable cause of action. The second defendant’s application was therefore incompetent. It was also incompetent because it did not comply with the requirements of sub-rule (2) that the application shall state concisely the grounds upon which it is made. Save for the bald
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Kenya Law Reports [1982] KLR 10 1 5 10 15 20 25 30 35 40 statement that the plaint disclosed no cause of action against the second defendant, the application made under sub-rule 1(a) in this case did not state, concisely or otherwise, the grounds upon which it was made. The learned judge was right in dismissing it.
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  • Winter '12
  • kariuki
  • Complaint, Pleading

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