[2011] KEHC 3107 (KLR)
The court found that the defendants did not object to providing particulars and therefore ordered them to supply the requested particulars within 14 days. Regarding the notice to produce, the court held that documents classified as public records need not be produced by the defendants, as the plaintiff can obtain...
Source-derived case information.
- Citation
- [2011] KEHC 3107 (KLR)
- Parties
- Plaintiff: Joshvir Traders & Agencies Ltd; Defendant: Geoffrey Chege Kirundi; Defendant: Lucy Wamaitha Chege; Defendant: Everton Coal Enterprises Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 236 of 2009
- Procedural Posture
- Civil Suit / Interlocutory Application for Particulars and Discovery Orders
- Outcome
- Application allowed in part; orders for provision of particulars and partial discovery granted.
- Judges
- GG Okwengu
- Legal Topics
- Discovery of Documents, Particulars in Pleadings, Inspection of Documents
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joshvir Traders & Agencies Ltd
Plaintiff
Geoffrey Chege Kirundi
Defendant
Lucy Wamaitha Chege
Defendant
Everton Coal Enterprises Limited
Defendant
Procedural Posture
Civil Suit / Interlocutory Application for Particulars and Discovery Orders
Legal Issues
- 1 Whether the defendants should be compelled to provide particulars as requested by the plaintiff.
- 2 Whether the 1st and 2nd defendants should be compelled to produce documents for inspection as per the notice to produce.
- 3 Whether failure to comply with the orders should result in striking out of the defences.
Ratio Decidendi
The court found that the defendants did not object to providing particulars and therefore ordered them to supply the requested particulars within 14 days. Regarding the notice to produce, the court held that documents classified as public records need not be produced by the defendants, as the plaintiff can obtain them from the court registry. However, the remaining documents listed in the notice to produce were deemed relevant to the issues in dispute, and the 1st and 2nd defendants were ordered to make them available for inspection within 14 days. The court further held that, in the event of non-compliance, the plaintiff would be at liberty to apply for the defences to be struck out...
Court Disposition
Application allowed in part; orders for provision of particulars and partial discovery granted.
Orders
- Defendants to file answers to the plaintiff's request for particulars and supply the required particulars within 14 days.
- 1st and 2nd defendants to avail documents listed as Nos. (4), (5), (6), (7), (8) & (9) for inspection within 14 days.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
LAND AND ENVIRONMENTAL LAW DIVISION
CIVIL SUIT (ELC) NO. 236 OF 2009
JOSHVIR TRADERS & AGENCIES LTD……………..PLAINTIFF
VERSUS
GEOFFREY CHEGE KIRUNDI………………….1ST DEFENDANT
LUCY WAMAITHA CHEGE…………………….2ND DEFENDANT
EVERTON COAL ENTERPRISES LIMITED.…3RD DEFENDANT
R U L I N G
1. The plaintiff/applicant seeks orders under Order VI Rule 8(2), (17), (20) & (23) of the Civil Procedure Rules, and Section 3A of the Civil Procedure Act, for the defendants to be ordered to give particulars and produce documents for inspection as per the request for particulars and notice to produce dated 29th May, 2010 served on the defendants on 31st May, 2010. In default of compliance within 14 days, the plaintiff seeks order that the defence shall stand dismissed.
2. The plaintiff’s counsel has sworn an affidavit deponing that the plaintiff requires the requested particulars for the purposes of shedding light on all the matters in controversy. The court was urged to issue the orders sought so that discovery may be finalized.
3. The 1st and 2nd defendants did not object to being ordered to provide the necessary particulars. However, the 1st and 2nd defendants object to being ordered to produce the documents. They allege that some of the documents required to be produced do not form part of the transaction subject of the suit.
4. The 3rd defendant indicated it had only been served with a request for particulars which it was willing to comply with. The 3rd defendant denied having been served with any notice to produce.
5. Having considered the application, I find that neither the 1st and 2nd defendants nor the 3rd defendant object to the request for particulars served upon them by the plaintiff. In the circumstances, I do order that the defendants shall file an answer to the plaintiff’s request for particulars and supply the required particulars within 14 days from today.
6. As regards the notice to produce, the same was only addressed to the 1st and 2nd defendants. Having considered the objection of the 1st and 2nd defendants, I do concur that the documents listed as Nos.(1), (2) and (3) on the plaintiff’s notice to produce are public documents, copies of which the plaintiff can easily obtain from the appropriate court registry. As regards the documents listed as Nos. (4), (5), (6), (7), (8) and (9), they are all documents which are relevant to the issues before the court. The plaintiff and his advocate are entitled to inspect the original documents. The fact that copies may have been availed to them is not sufficient to negate that right.
7. I do therefore order that the 1st and 2nd defendants shall avail documents listed as Nos.(4), (5), (6), (7), (8) & (9) to the plaintiff for inspection within 14 days from the date hereof.
8. In default of the defendants complying with these orders, the plaintiff shall be at liberty to apply under Order X Rule 20 of the civil Procedure Rules for the defences to be struck off.
Orders accordingly.
Dated and delivered this 11th day of February, 2011
H. M. OKWENGU
JUDGE
In the presence of: -
Kamunde for the plaintiff
Advocate for the defendants absent
Kosgei - Court clerk