[2022] KEHC 210 (KLR)

Kanabar v Highgrove Holdings Limited (Civil Case 181 of 2019) [2022] KEHC 210 (KLR) (Commercial and Tax) (17 March 2022) (Ruling)

Neutral citation: [2022] KEHC 210 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Civil Case 181 of 2019

WA Okwany, J

March 17, 2022

Between

Rashmikant Bhagwandas Kanabar

Plaintiff

and

Highgrove Holdings Limited

Defendant

Ruling

1. When this matter came up for hearing on 23rd November 2021, Ms Leah Muhia Advocate who appeared for the 2nd defendant informed the court that she was ready to proceed with one witness while Mrs. Kamau Advocate for the plaintiff was not ready to proceed. Mrs. Kamau requested for more time to file a fresh witness statement on the basis that the plaintiff’s key witness had left their firm.

2. Ms Muhia opposed the application for adjournment and informed the court that a similar application was made when the case came up for hearing on 23rd June 2021. Ms Muhia noted that the plaintiff had, as at the hearing date, not filed any witness statement despite the fact that the case had come up for case management four times. Ms Muhia argued that under Order 3 Rule 2 of the Civil Procedure Rules, it is a mandatory requirement that witness statements and bundle of documents be filed together with the plaint. She urged the court to strike out the suit pursuant to Order 11 Rule 5 of the Civil Procedure Rules for failure to comply with case management rules. Counsel cited the decisions in Joyce Mumbua Mutisya vs KCB [2019] eKLR and David M. Macharia vs Christopher Mwangi[2015] eKLR. According to Ms Muhia, the conduct of the plaintiff is that of a party who does not wish to appear in court.

3. I have considered the rival arguments by counsel for the parties over the issue of whether the plaintiff should be granted more time to file its witness statements. It was not disputed that the plaintiff did not file any witness statement together with the plaint and that the matter came up for case management four times and for hearing once on which occasions, the plaintiff had not filed any witness statement.

4. Order 3 Rule 2 of the Civil Procedure Rules Stipulates as follows: -All suits filed under rule 1(1) including suits against the government, except small claims, shall be accompanied by—(a) the affidavit referred to under Order 4 rule1(2);(b) a list of witnesses to be called at the trial;(c) written statements signed by the witnesses excluding expert witnesses; and(d) copies of documents to be relied on at the trial including a demand letter before action:Provided that statement under sub rule (c) may with leave of court be furnished at least fifteen days prior to the trial conference under Order 11.

5. Order 11 Rule 5 of the Civil Procedure Rules on the other hand provides that: -(1)Save as otherwise provided, a plaintiff may unite in the same suit several causes of action against the same defendant or the same defendants jointly; and any plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such causes of action in the same suit.(2)Where causes of action are united, the jurisdiction of the court as regards the suit shall depend on the amount or value of the aggregate of the subject-matters at the date of instituting the suit.

6. My finding is that the conduct exhibited by the plaintiff in this matter is that of a party who is keen on proceeding with his case. I find that the delay in filing the witness statements is not only inordinate but has also not been explained through plausible grounds.

7. I am not persuaded that the plaintiff is entitled to the adjournment sought. I find that the defendant has made out a case for the striking out of the suit. Consequently, I strike out the plaintiffs suit with costs to the 2nd defendant.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 17TH DAY OF MARCH 2022. W. A. OKWANYJUDGEIn the presence of:Ms Leah Muhia for the 2nd Defendant.Ms Gichuki for Kyalo Mbobu for Plaintiff.Court Assistant – Sylvia