[2021] KEHC 12553 (KLR)
The court found that both parties, through their advocates, failed in their responsibility to each other and to the court by not ensuring the expeditious, fair, and proportionate conduct of litigation, particularly in the exchange of documents necessary for the preparation of the case. The court declined to waste...
Source-derived case information.
- Citation
- [2021] KEHC 12553 (KLR)
- Parties
- Plaintiff: Bank of Africa Limited; Defendant: Morganite Limited; Defendant: Bartonjo Chesaina; Defendant: Elisha Kiprop Chirchir; Defendant: Kipruto Chirchir
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case E053 of 2019
- Procedural Posture
- Civil Case / Ruling on Interlocutory Applications to Strike Out Plaint and Defence
- Outcome
- Both applications to strike out the Plaint and Defence are dismissed. Directions issued for exchange of documents and further case management.
- Judges
- DAS Majanja
- Legal Topics
- Striking Out Pleadings, Exchange of Documents, Overriding Objective, Case Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bank of Africa Limited
Plaintiff
Morganite Limited
Defendant
Bartonjo Chesaina
Defendant
Elisha Kiprop Chirchir
Defendant
Kipruto Chirchir
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Applications to Strike Out Plaint and Defence
Legal Issues
- 1 Whether the Plaintiff's Defence should be struck out for failure to provide documents to the Defendants.
- 2 Whether the Defendants' Plaint should be struck out as sought by the Defendants.
- 3 Whether the parties and their advocates have complied with their obligations to assist the court in furthering the overriding objective under the Civil Procedure Act.
Ratio Decidendi
The court found that both parties, through their advocates, failed in their responsibility to each other and to the court by not ensuring the expeditious, fair, and proportionate conduct of litigation, particularly in the exchange of documents necessary for the preparation of the case. The court declined to waste judicial time resolving disputes that should have been resolved by counsel and dismissed both the Plaintiff's application to strike out the Defence and the Defendants' application to strike out the Plaint. The court issued specific directions to facilitate the exchange of documents, amendment of pleadings, and agreement on issues for trial, warning that failure to comply would...
Court Disposition
Both applications to strike out the Plaint and Defence are dismissed. Directions issued for exchange of documents and further case management.
Orders
- The Plaintiff shall serve upon the Defendants its List and Bundle of Documents within 14 days, accompanied by an affidavit of disclosure.
- The Defendants are granted leave to amend their Statement of Defence and serve their List and Bundle of Documents within 14 days of service, accompanied by an affidavit of disclosure.
Full Case Text
Judgment text and source record
31 paragraphs
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
COMMERCIAL AND TAX DIVISION
CORAM: D. S. MAJANJA J.
CIVIL CASE NO. E053 OF 2019
BETWEEN
BANK OF AFRICA LIMITED.........................................................................PLAINTIFF
AND
MORGANITE LIMITED......................................................................1ST DEFENDANT
BARTONJO CHESAINA.....................................................................2ND DEFENDANT
ELISHA KIPROP CHIRCHIR............................................................3RD DEFENDANT
KIPRUTO CHIRCHIR.........................................................................4TH DEFENDANT
RULING
1. I have looked and considered the record herein and I find that there are two applications. The Plaintiff filed a Notice of Motion dated 15th July 2020 seeking to strike out the Defence. The Defendants have filed a Notice of Motion dated 19th October 2020 seeking to strike out the Plaint.
2. The Plaintiff’s case is for money advanced to the 1st defendant and guaranteed by the 2nd, 3rd and 4th Defendants. In their Statement of Defence, the Defendants apart from denying those claims, state that they have been unable to defend themselves on account of failure by the Plaintiff to provide documents to enable them prepare their defence. It is on this basis that the Defendants filed their application to strike out the Plaint and resisted the application to strike out the Defence.
3. I do not propose to consider or outline the parties’ advocates’ recriminations against each regarding the service and exchange of documents save to refer to section 1A (3) of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) provides as follows:
1A(3) A party to civil proceedings or an advocate for such party is under a duty to assist the court to further the overriding objective of the Act and to that effect, to participate in the processes of the court and to comply with the direction and orders of the court.
4. This is a case where the Advocates have utterly failed in their responsibility to each other and to the court to ensure that litigation is in an expeditious, fair and proportionate manner. The court does not intend to waste its time resolving matters which ought to have been resolved by counsel at the earliest opportunity save to dismiss the Notice of Motion dated 15th July 2020 and the Notice of Motion dated 19th October 2020.
5. I now issue the following directions in order to ensure that this matter is expeditiously dealt with:
(a) The Plaintiff shall serve upon the Defendants its List and Bundle of Documents within 14 days from the date hereof. The documents shall be in soft copy sent by email and filed on the court’s online portal. The documents shall be accompanied by an affidavit stating that the Plaintiff has produced all the documents in their power and possession in respect of this suit.
(b) Upon service of the List and Bundle of Documents, the Defendants are granted leave to amend their Statement of Defence which shall be filed and served within 14 days from the date of service and shall be accompanied by their List and Bundle of Documents accompanied by an affidavit of the Defendants stating that they have produced all the documents in their power and possession in respect of the suit.
(c) Upon 14 days of service of the Statement of Defence, the Plaintiff shall file and serve its Reply to Defence.
(d) The parties shall agree on facts, issues and documents for trial within 14 days of service of the Reply to Defence.
6. Default or failure to comply with any part of these directions shall result in striking out of the respective pleadings.
7. This matter shall be mentioned on a date fixed for directions and further orders.
DATEDandDELIVEREDatNAIROBIthis15th day of JANUARY 2021.
D. S. MAJANJA
JUDGE
Court Assistant: Mr. M. Onyango.
Mr Gichuhi instructed by Wamae and Allen Advocates for the Plaintiff.
Mr Muga instructed by Prof. Tom Ojienda and Associates Advocates for the Defendants.