[2006] KEHC 2859 (KLR)
The court found that the defendant's application for further and better particulars was genuine and justified. The plaintiff's refusal to provide the requested particulars for items (b), (c), and (d) was not acceptable, as the information in the plaint was insufficient for the defendant, a large commercial bank, to...
Source-derived case information.
- Citation
- [2006] KEHC 2859 (KLR)
- Parties
- Plaintiff: Highlands Mineral Water Company Limited; Defendant: Kenya Commercial Bank Limited
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Case 184 of 2000
- Procedural Posture
- Civil Case / Ruling on Chamber Summons for Further and Better Particulars
- Outcome
- application granted
- Judges
- JM Khamoni
- Legal Topics
- Particulars of Pleadings, Banking Disputes, Overcharging Interest, Disclosure of Information
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Highlands Mineral Water Company Limited
Plaintiff
Kenya Commercial Bank Limited
Defendant
Procedural Posture
Civil Case / Ruling on Chamber Summons for Further and Better Particulars
Legal Issues
- 1 Whether the plaintiff is required to provide further and better particulars of its claim as requested by the defendant.
- 2 Whether the particulars sought by the defendant constitute evidence or are within the defendant's knowledge and therefore need not be supplied.
- 3 Whether refusal to supply particulars amounts to ambushing the defendant and is contrary to the interests of justice.
Ratio Decidendi
The court found that the defendant's application for further and better particulars was genuine and justified. The plaintiff's refusal to provide the requested particulars for items (b), (c), and (d) was not acceptable, as the information in the plaint was insufficient for the defendant, a large commercial bank, to prepare its defence. The court rejected the plaintiff's argument that the particulars sought were either evidence or within the defendant's knowledge, holding that if the plaintiff's claim was based on truth, there should be no reason to withhold the particulars. The court emphasized that the interests of justice require openness and that technicalities such as delay or change...
Court Disposition
application granted
Orders
- The Chamber Summons dated 17th May 2004 is granted as prayed.
- The plaintiff is ordered to deliver specific particulars of the claim as sought by the defendant in items (b), (c), and (d) of the request for particulars dated 18th October 2000.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYERI
Civil Case 184 of 2000
HIGHLANDS MINERAL WATER COMPANY LIMITED…...…PLAINTIFF
VERSUS
KENYA COMMERCIAL BANK LIMITED…………………..DEFENDANT
RULING
In the chamber summons dated 17th May 2004, the applicant /defendant is applying for orders:
“That the plaintiff be to deliver specific particulars of the claim stated in its pleadings and sought by the defence in the whole of items No. (b) (c) & (d) in the request for particulars dated 18th October 2000. ”
The plaintiff is the Respondent in this chamber summons filed following the filing, by the Respondent, of a plaint which states in paragraph 1, the main part, that:
“The plaintiffs claim against the defendant is for the sumof ksh. 7, 588, 615/57 being the money due and owingin respect of interest overcharged to the plaintiffscompany by the Defendant Bank at Nyeri during theperiod from 1991 to 1998, facts whereof are well within the Defendant’s Bank knowledge. The plaintiff will further aver that there is no other suit filed anywhere in the Republic against the Defendant Bank for the same claim or similar claim. The plaintiff will also claim interest at 36%.”
Although the applicant filed a defence to that plaint, the applicant had also sent a formal request to the respondent to supply further and better particulars and that request was dated 18th October 2000 set out in sub-paragraphs (a), (b), (c) and (d). The Respondent replied on 17th April 2001. There is no need to reproduce the said request and reply thereof since the parties have them.
The reality of the matter is that while the reply dated 17th April 2001 gave particulars for request (a), the reply did not give particulars for requests (b), (c) and (d). Hence this chamber summons which is opposed on the basis that the particulars sought are either evidence or are within the knowledge of the applicant.
I have carefully considered what was brought to my attention during the hearing of the chamber summons and have no hesitation to state that the applicant’s application is genuine and what the Respondent is saying cannot stand. The applicant is a large Commercial Bank dealing with many and varied customers in varying transactions and particulars in the plaint as set out in the passage quoted above cannot be accepted as sufficient to the applicant. If the Respondent is relying on terms in a contract, I do not see it reasonable for the Respondent urguing that it cannot reveal that contract to the Applicant at this stage because that contract is evidence or is within the knowledge of the Applicant. If the Respondent’s claim is based on truth, let the Respondent be open with its truth as there is and ought to be no need for ambushing, the applicant. Is the Respondent fearing an early settlement of the dispute ? If so why ?
As in my view the Applicant’s application is genuine and in the interest of justice the Respondent is not entitled to revert to technicalities like delay or change of advocates to defeat the Applicant’s request, the Chamber Summons dated 17th May 2004 be and is hereby granted as prayed.
DATED AND DELIVERED ON THE 23RD OF FEBRUARY, 2006.
J. M. KHAMONI
JUDGE