[2009] KEHC 3518 (KLR)
The court found that the purpose of Order X rule 11A of the Civil Procedure Rules is to ensure discovery of documents before the hearing begins. Since the plaintiff had already testified and closed his case, allowing the defendant to file its list of documents at this stage would necessitate reopening the case,...
Source-derived case information.
- Citation
- [2009] KEHC 3518 (KLR)
- Parties
- Plaintiff: Dennis Ouma Simolo; Defendant: A.A. Trasporters Ltd
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 118 of 2005
- Procedural Posture
- Civil Suit / Ruling on Application for Leave to File List of Documents Out of Time
- Outcome
- motion dismissed with costs to the plaintiff
- Judges
- JK Sergon
- Legal Topics
- Late Filing of Documents, Discovery Procedure, Leave of Court, Case Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dennis Ouma Simolo
Plaintiff
A.A. Trasporters Ltd
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Leave to File List of Documents Out of Time
Legal Issues
- 1 Whether the defendant should be granted leave to file its list of documents out of time after the plaintiff has closed his case.
- 2 Whether the defendant has provided sufficient reasons for the delay in filing its list of documents.
Ratio Decidendi
The court found that the purpose of Order X rule 11A of the Civil Procedure Rules is to ensure discovery of documents before the hearing begins. Since the plaintiff had already testified and closed his case, allowing the defendant to file its list of documents at this stage would necessitate reopening the case, which is contrary to the intention of the rules. Furthermore, the defendant failed to annex the documents or the list it sought to introduce and did not provide satisfactory reasons for the delay. The court inferred that the delay was calculated to surprise the plaintiff and found no merit in the application. Consequently, the motion was dismissed with costs to the plaintiff.
Court Disposition
motion dismissed with costs to the plaintiff
Orders
- The defendant's motion for leave to file its list of documents out of time is dismissed.
- Costs awarded to the plaintiff.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Civil Suit 118 of 2005
DENNIS OUMA SIMOLO………………...……..PLAIANTIFF
VERSUS
A.A. TRASPORTERS LTD ……….....…………..DEFENDANT
RULING
The defendant took out the motion dated 20/11/2008 in which it sought for leave to file its list of documents out of time. The motion is stated to be taken out pursuant to sections 3A and 95 of the Civil Procedure Act and under order X rule 11A and order XLIX rule 5 of the Civil procedure rules. It is supported by the affidavit of Godfrey Mutubia. The plaintiff filed an affidavit in reply to signify his objection to the motion.
It is the defendant’s submission that the orders sought in the motion should be given because the document it intends to rely on is a vital report prepared by a document examiner which report was prepared well after the time fixed for filing the defendant’s list of documents had expired. It is said that the defendant received the plaintiff’s notice to produce documents on 27/09/2008 but it inadventetly failed to file its list of documents.
The plaintiff opposed the motion on the grounds that the defendant had time to deal with the plaintiff’s documents before the plaintiff testified. It is the plaintiff’s submission that the defendant’s application is an afterthought.
I have considered the two devengent arguments. Basically the defendant is seeking to file its list documents out if time. It is apparent from the record that the plaintiff has testified and has even closed his case. The record further indicates that the defendant was served with a notice to produce dated 20-09-2007 on 27-09-2007. Amongst the documents listed in the aforesaid notice is the letter dated 26th August 1997. That letter was produced as the plaintiff’s exhibit. The defendant had urged this court to grant it leave to enable it file a list of documents which shall include a document examiner’s report in respect of the letter dated 26. 8.97. The purpose of the order X rule 11A of the civil procedure rules is to enable parties discover documents before a hearing commences. The law did not envisage a situation where parties discovered documents after a hearing. That ground alone disposes of the motion. The plaintiff had already closed his case. If the application is allowed it will mean that the case will have to be reopened again. Even if I were to be persuaded to grant the application, still the defendant may not convince me because it failed to annex a copy of the documents nor the list of the documents. It would appear the defendant is in a fishing expedition. In any case there are no good reasons why the defendant delayed to file its list of documents. I can only infer that the delay was well calculated to spring up a surprise against the plaintiff.
In the end and on the basis of the above reasons I dismiss the motion with costs to the plaintiff.
Dated and delivered this 6th day of May 2009
J. K. SERGON
JUDGE