[2018] KEHC 2734 (KLR)
The court found that while the plaintiff ought to have been fully prepared by the case management conference, the bank statements are central to the dispute regarding alleged illegal charges and interest rates. Without the statements, the court would be unable to properly assess the arguments for or against the...
Source-derived case information.
- Citation
- [2018] KEHC 2734 (KLR)
- Parties
- Plaintiff: Fairlane Supermarkets Limited; Defendant: Barclays Bank of Kenya Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 102 of 2011
- Procedural Posture
- Civil Case / Ruling on Application to File Additional Documents During Trial
- Outcome
- application allowed
- Judges
- F Tuiyott
- Legal Topics
- Case Management, Admission of Evidence, Banking Disputes, Interest Rate Charges
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fairlane Supermarkets Limited
Plaintiff
Barclays Bank of Kenya Limited
Defendant
Procedural Posture
Civil Case / Ruling on Application to File Additional Documents During Trial
Legal Issues
- 1 Whether the plaintiff should be granted leave to file additional bank statements during trial.
- 2 Whether admitting the bank statements at this stage would prejudice the defendant.
- 3 Whether the bank statements are necessary for the fair determination of the dispute regarding alleged illegal charges and interest rates.
Ratio Decidendi
The court found that while the plaintiff ought to have been fully prepared by the case management conference, the bank statements are central to the dispute regarding alleged illegal charges and interest rates. Without the statements, the court would be unable to properly assess the arguments for or against the allegations. To mitigate any prejudice to the defendant, the court allowed the defendant to recall witnesses for further cross-examination. The overriding objective of ensuring a fair trial justified granting the plaintiff leave to file the additional bank statements, with costs in the cause.
Court Disposition
application allowed
Orders
- Plaintiff granted leave to file the bank statements.
- Defendant entitled to recall any witness for further cross-examination.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
COMMERICIAL AND ADMIRALTY DIVISION
CIVIL CASE NO. 102 OF 2011
FAIRLANE SUPERMARKETS LIMITED..........PLAINTIFF
VERSUS
BARCLAYS BANK OF KENYA LIMITED....DEFENDANT
RULING
1. One of the objectives of Pre-Trial Proceedings and Case Management, is to allow parties to have advance knowledge of the Case they are expected to confront. In this way they have opportunity to prepare adequately.
2. Case Management Conference in this matter was held way back on 20th March 2015 and the matter proceeded partly before Gikonyo J. on 2nd July 2015. But as the Honorable Judge left the Station, parties agreed that the matter commences De Novo.This Court was in the midst of taking cross-examination of the Plaintiff’s second witness when Counsel for the Plaintiff sought Leave of Court to file the Bank Statements which was the basis of the Report the witness was producing. That request was opposed.
3. The witness currently giving evidence is Mr. Wilfred Abincha Unono. He is the Managing Consultant of The Interest Rates Advisory Centre (IRAC) which prides itself in Account Scrutiny and Interest Re-calculation. He was called to give evidence in respect to the Plaintiff’s account with the Defendant Bank and has produced a Report in respect thereof.
4. At cross-examination he told Court that,
“This was drawn from the Statement of Accounts”.
This prompted the current application as the Statements were not part of the Report.
5. No doubt, there is merit in the resistance by Counsel for the Defendant that the Plaintiff was required to know the Documents it would be relying on so as to discharge the onus of proving its case. It may also be true that the Defendant has firmed up its Defence on the basis of the Documents it was served. This Court is told that the Documents sought to be filed are aimed at countering what has been raised in cross-examination.
6. The Plaintiff sees the resistance as an attempt by the Defendant to obscure the truth and argues that in any event even the witness for the Bank makes reference to entries made in the Statements.
7. Part of the Plaintiff’s case is that the Bank levied illegal charges and interest rates on its Account. This, of course, is denied by the Defendant. Whilst it is true that the Plaintiff ought to have fully prepared its case by the time of the Case Management Conference, it may be difficult for this Court to follow arguments for or against the allegations that the Bank has charged excessive or uncontracted interest or rates without the benefit of looking at the Bank Statements.
8. It is only for this reason that this Court will be willing to accommodate the request by the Plaintiff. The Bank is the custodian of copies of the Statements of the Plaintiff’s account and they can provide copies thereof for comparison with what the Plaintiff will be producing.
9. So as to eliminate any risk of prejudice on the part of the Defence, the Defendant shall be entitled to recall either or both witnesses who have testified for further cross-examination.
10. The Application is allowed. Costs in the cause.
Dated, delivered and signed in open Court at Nairobi this 19th day of October 2018.
F. TUIYOTT
JUDGE
Present:-
Muthee for Defendant
Chebet h/b Mbabu for Plaintiff
Nixon-Court Assistant