[2013] KEHC 4576 (KLR)
The court held that, pursuant to Order 54 of the Civil Procedure Rules, the new rules apply to all pending proceedings, including applications for particulars filed under the old rules. The court found that the issues raised in both parties' applications for particulars are now more appropriately addressed under...
Source-derived case information.
- Citation
- [2013] KEHC 4576 (KLR)
- Parties
- Plaintiff: AWAL LIMITED; Defendant: HUSSEIN DAIRY LTD. & OTHERS
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 276 of 2008
- Procedural Posture
- Civil Case / Ruling on Applications for Particulars
- Outcome
- Applications for particulars to be addressed under Order 11 of the new Civil Procedure Rules.
- Judges
- JV Juma
- Legal Topics
- Requests for Particulars, Transitional Provisions, Pre Trial Directions, Case Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
AWAL LIMITED
Plaintiff
HUSSEIN DAIRY LTD. & OTHERS
Defendant
Procedural Posture
Civil Case / Ruling on Applications for Particulars
Legal Issues
- 1 Whether the applications for particulars filed under the old Civil Procedure Rules should be determined under the new Civil Procedure Rules.
- 2 Whether Order 11 of the new Civil Procedure Rules provides a more appropriate mechanism for handling requests for particulars in pending cases.
Ratio Decidendi
The court held that, pursuant to Order 54 of the Civil Procedure Rules, the new rules apply to all pending proceedings, including applications for particulars filed under the old rules. The court found that the issues raised in both parties' applications for particulars are now more appropriately addressed under Order 11 of the new Civil Procedure Rules, which provides for pre-trial directions and case conferences. Therefore, the court directed the parties to proceed in accordance with Order 11, rather than determining the applications under the superseded provisions. This approach ensures consistency with the current procedural framework and promotes efficient case management.
Court Disposition
Applications for particulars to be addressed under Order 11 of the new Civil Procedure Rules.
Orders
- Parties to proceed in line with Order 11 of the Civil Procedure Rules regarding requests for particulars.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
High Court at Mombasa
Civil Case 276 of 2008 [if !mso]> <style> v:* {behavior:url(#default#VML);} o:* {behavior:url(#default#VML);} w:* {behavior:url(#default#VML);} .shape {behavior:url(#default#VML);} </style> <![endif]
AWAL LIMITED……………..……..……………….…………….PLAINTIFF
VERSUS
HUSSEIN DAIRY LTD. & OTHERS………….....………….DEFENDANT
RULING
Before court is the plaintiff/applicant’s chamber summons dated 5th February, 2009 brought under Order VI rule 8(2) of the old Civil Procedure Rules. In this application the applicant requests particulars based on various aspects of the respondent’s statement of defence and counter-claim dated 3rd November, 2008. Having perused the file I note that the defendants did also make by way of chamber summons dated 3rd December, 2008 a similar request for particulars also brought under Order VI rule 8(2) of the old Civil Procedure Rules. By a consent dated 18th March, 2009 it was agreed between the parties that the two applications be heard together. It was further agreed that the application be argued by way of written submissions. By 19th April, 2011 both parties had filed their written submissions and all that now remains is for this court to render its ruling on the same.
I have carefully perused the written submissions filed by MR. LIJOODI for the applicant and MR. SITONIK for the respondent. It is clear that each side have a long list of particulars which they seek from the other side. It is imperative to note that both applications were made and filed in court under the old Civil Procedure Rules. This was before the new Civil Procedure Rules of September, 2010 came into effect. It is my view that all the matters raised for determination in the two applications are effectively dealt with under Order 11 of these new Civil Procedure Rules – PRE-TRIAL DIRECTIONS AND CONFERENCES – specifically Order 11 rule 3 which provides for a case conference would dispose of the issues raised. Order 54 of the New Civil Procedure Rules deals with REVOCATION AND TRANSITIONAL PROVISIONS and Order 54 rule 2 provides:
“In all proceedings pending whether preparatory or incidental to or consequential upon any proceedings in court at the time of the coming into force of these rules, the provisions of these rules shall thereafter apply, but without prejudice to the validity of anything previously done provided that:
(a)If and in so far as it is impracticable in any such proceedings to apply the provisions of these rules, the practice and procedure heretofore detaining shall be followed.
(b)In any case of difficulty or doubt the Chief Justice may issue practice notes or directions as to the procedure to be adopted.”
It is clear therefore from Order 54 that these Civil Procedure Rules will be applicable to all matters and issues raised before they came into force. Therefore it is my view that these requests for particulars filed by both parties would be far better handled by Order 11 of the new Civil Procedure Rules. I therefore direct that the parties do now proceed in line with the said Order 11 of the New Civil Procedure Rules.
Dated and delivered in Mombasa this 28th day of March, 2013.
M. ODERO
JUDGE
In the presence of:
Ms. Mbulika h/b Mr. Taib for Plaintiff
No appearance by Respondent
Court Clerk Mutisya
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