[2019] KEHC 12101 (KLR)
The court found that the plaintiff, having been granted leave only to substitute the witness statement without altering its substance or contents, was not entitled to introduce new documents through the substituted statement. The plaintiff did not seek or obtain leave to file additional documents, and the attempt to...
Source-derived case information.
- Citation
- [2019] KEHC 12101 (KLR)
- Parties
- Plaintiff: EABS Bank Limited; Defendant: Nikunj S. Patel; Defendant: Suman H. Patel; Defendant: Nilesh S. Patel; Defendant: Ramesh C. Mehta; Defendant: S. C. Mehta
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 547 of 2019
- Procedural Posture
- Civil Suit / Interlocutory Ruling on Admissibility of Documents
- Outcome
- Objection upheld; documents expunged.
- Judges
- F Tuiyott
- Legal Topics
- Admissibility of Evidence, Witness Statements, Leave of Court, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
EABS Bank Limited
Plaintiff
Nikunj S. Patel
Defendant
Suman H. Patel
Defendant
Nilesh S. Patel
Defendant
Ramesh C. Mehta
Defendant
S. C. Mehta
Defendant
Procedural Posture
Civil Suit / Interlocutory Ruling on Admissibility of Documents
Legal Issues
- 1 Whether the plaintiff could introduce new documents through a substituted witness statement without leave of court.
- 2 Whether the documents attached to the substituted witness statement dated 13th August 2019 should be expunged from the record.
Ratio Decidendi
The court found that the plaintiff, having been granted leave only to substitute the witness statement without altering its substance or contents, was not entitled to introduce new documents through the substituted statement. The plaintiff did not seek or obtain leave to file additional documents, and the attempt to do so was deemed an abuse of the latitude granted by the court. Consequently, all further documents attached to the substituted witness statement dated 13th August 2019 were ordered to be expunged from the record.
Court Disposition
Objection upheld; documents expunged.
Orders
- All further documents attached to the bundle dated 13th August 2019 are hereby expunged from the record.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
MILIMANI COMMERCIAL & TAX DIVISION
HCCC NO. 547 OF 2006
EABS BANK LIMITED ..................................................................................PLAINTIFF
VERSUS
1. NIKUNJ S. PATEL ..........................................................................1ST DEFENDANT
2. SUMAN H. PATEL ......................................................................... 2ND DEFENDANT
3. NILESH S. PATEL ...........................................................................3RD DEFENDANT
4. RAMESH C. MEHTA ..................................................................... 4TH DEFENDANT
5. S. C. MEHTA ................................................................................... 5TH DEFENDANT
RULING
1. On 6TH May 2019 Ms Mochama ,appearing for the Plaintiff, informed Court that her client’s witness had left employment and she sought leave to have a statement prepared by that witness substituted.
2. That witness was Pauline Olali who filed a written statement dated 27th August 2012 and presented to Court on 6th September 2012.
3. The Court granted the leave sought but on condition that the substituted witness statement would not change the substance or contents of the earlier statement.
4. Since then the Plaintiff has filed two witness statements by Stephen Maweu Syovo both dated 13th August 2019. Attached to those statements are documents. Counsel for the Defendant objects to documents introduced by this statement and requests that they be expunged.
5. Other than seeking that the documents be accepted as duly filed, counsel for the Plaintiff does not explain why the documents were filed inspite of the clear order of 6th May 2019. No leave was granted for filing of new documents. Indeed no leave was sought for admission of the documents.
6. The Plaintiff has attempted to abuse the latitude of the leave granted on 6th May 2019 and will not be permitted to do so. All further documents attached to the bundle dated 13th August 2019 are hereby expunged from the record.
Dated, Signed and Delivered in Court at Nairobi this 6th Dayof November 2019.
F. TUIYOTT
JUDGE
PRESENT;
Mochama for Plaintiff
No appearance for Defendant
Court Assistant: Nixon
Later:
Gichaba for 4th and 5th Defendant