[2022] KEHC 662 (KLR)

Kenya Tea Development Agency Management Services Limited & another v AIG Kenya Insurance Company Limited (Civil Case E208 of 2021) [2022] KEHC 662 (KLR) (Commercial and Tax) (5 May 2022) (Ruling)

Neutral citation: [2022] KEHC 662 (KLR)

Republic of Kenya

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

Civil Case E208 of 2021

DAS Majanja, J

May 5, 2022

Between

Kenya Tea Development Agency Management Services Limited

1st Plaintiff

Kenya Tea Development Agency Holdings Limited

2nd Plaintiff

and

AIG Kenya Insurance Company Limited

Defendant

Ruling

1. The Plaintiffs filed the Plaint dated 20th April 2021 seeking to recover Kshs. 28,253,005. 00 being litigation costs and fees incurred in defending certain suits against them and their directors. They state that costs and fees incurred were covered by a Directors and Officers Liability Insurance policy issued by the Defendant and which the Defendant has avoided. They therefore seek reliefs in relation to the said sum. The Defendant entered appearance and filed a statement of defence denying the claim.

2. In due course, the Defendant filed a Request for Particulars dated 31st August 2021 seeking the following documents / particulars / information;(i)Documentary evidence of notification by the Plaintiff to the Defendant of the filing of the matters stated under Paragraph 9 (a – i) of the Plaint.(ii)Plaints, Defenses and Decrees if any, of the matters listed under Paragraph 9 (a) – (i) of the Plaint.(iii)Evidence of payment by the Plaintiff in those claims.(iv)Breakdown of the claimed sum of Kshs. 28,253,005 and a tabulation of the money paid on each of the claims stated under Paragraph 9 (a) – (i) and the basis / reason of the payment.(v)Documents number 3 – 25 of the Plaintiff’s list of documents.(vi)Current position of the matters stated in Paragraph (a) – (i) of the Plaint.

3. On 21st September 2021, the Plaintiff filed a reply to the Defendants request for particulars dated 31st August 2021 whereupon the Defendant filed an application dated 26th October 2022 brought under sections 1, 1A, 3A, 22(a) of the Civil Procedure Actand Order 11 Rule 3(o) (i) and Rules 51 of the Civil Procedure Rules praying for the following orders;(a)That the court be pleased to compel the Plaintiff to fully comply with the Defendant’s request for particulars dated 31st August 2021. (b)That in default of full compliant of prayer 1, the suit to stand dismissed with costs to the defendant.(c)That there be a moratorium on interest accrual on the principal sum from 21/9/2021 until the Plaintiff complies with Order 1 hereinabove.(d)That costs of this application be provided for.

4. The application is based on the grounds on the face of the application, two of which are that the response to the request was not thorough as not all the documents were provided by the Plaintiffs including the pleadings which the Plaintiffs just indicated had been provided to the Defendant from time to time effectively shifting the burden of proof from itself rather than producing the said documents. That it is in the interests of justice, the Plaintiffs should furnish the documents requested to the Defendant as they are in the custody of the Plaintiffs and form the core of its case for compensation. The application is supported by the affidavit of Wincate Gatheri Machira, the Defendant’s Claims Officer, sworn on 26th October 2021.

5. The application is opposed through the replying affidavit of Susan Musyoka, the Plaintiffs’ Head of Legal and Regulatory Affairs, sworn on 15th November 2021. Apart from laying the background of the Plaintiffs’ claim, she depones, inter alia, that the application is premature as it manifestly seeks an interlocutory judgement in absence of either a Notice of satisfaction of the information supplied by the Plaintiffs or a court order to the effect that the information supplied by the Respondent’s was sufficient, reasonable as provided under Order 2 Rule 1(3) of the Civil Procedure Rules. The Plaintiffs assert that there is no power donated to the Court to strike out a suit for failure to supply particulars as such power to strike out pleadings is provided under Order 2 Rule 15 of the Civil Procedure Rules.

6. Both parties filed submissions and cited various authorities in support of their respective positions which I have considered.

7. The general rule of pleadings is that a pleading must be confined to facts. This rule is provided for under Order 2 rule 3(1) of the Civil Procedure Ruleswhich reads:3(1) Subject to the provisions of this rule and rules 6,7 and 8 every pleading shall contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, but NOT the evidence by which those facts are to be proved, and the statement shall be as brief as the nature of the case admits.It is those facts that enable the other side to know the case it is defending. The lack of facts essential to constitute a cause of action may render a pleading liable to be struck out for being evasive and embarrassing. Of course facts must be distinguished from evidence. Evidence is the means by which the facts are proved. Evidence must not be set out in pleadings is the subject discovery rather than a request for particulars.

8. Order 2 Rule 10 of the Civil Procedure Rulesrequires that every pleading must contain the necessary particulars of any claim and provides that a party may apply for further particulars and the court may order such particulars on terms that it deems fit and just. The principle underpinning this provision of further particulars is that litigation between parties should be conducted in a fair and open manner. Litigation by ambush is no longer permitted. In Bruce v Odhams Press Limited [1963] 1 KB 697, the court held that the function of particulars is to fill in the picture of the Plaintiff’s cause of action which information, if sufficiently detailed, will put the Defendant on guard as to the case it has to meet to enable it prepare for trial. In essence, the provision of particulars prevents surprise and informs the other party on what is going to be proved to enable him prepare his case.

9. The application has been brought under Order 11 of the Civil Procedure Rules which deals with Pre-trial Conferences. During the Pre-trial Conference, the court is empowered to deal with any interlocutory matters hence I do not think that failure to invoke Order 2 rule 10 is fatal to the application particularly in light of the overriding objective which requires the court to deal with matters to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Civil Procedure Act.

10. Since the case is still at the pre-trial stage and the court is empowered to deal with any interlocutory issues, I shall now proceed to consider the Defendant’s Request for Particulars in light of the principles I have highlighted as follows:(a)Documentary evidence of notification by the Plaintiff to the Defendant of the filing of the matters stated under Paragraph 9 (a – i) of the Plaint.This request is rejected as it constitutes a request for evidence in form of documents which is a matter to be dealt with by the process of discovery.(b)Plaints, Defenses and Decrees if any, of the matters listed under Paragraph 9 (a) – (i) of the Plaint.This request seeks specific documents is rejected as it constitutes a request for evidence which is a matter to be dealt with by the process of discovery.(c)Evidence of payment by the Plaintiff in those claims.This request is rejected as it constitutes a request for evidence which is a matter to be dealt with by the process of discovery.(d)Breakdown of the claimed sum of Kshs. 28,253,005 and a tabulation of the money paid on each of the claims stated under Paragraph 9 (a) – (i) and the basis / reason of the payment.KES. 28,253,005 is the sum claimed by the Plaintiff for unsettled claims under the subject insurance policy. From the Plaint, this appears to be a global claim hence the Defendant is entitled to know how this amount is made up in order to avoid surprise and to be able to defend itself. The request is therefore justified.(e)Documents number 3 – 25 of the Plaintiff’s list of documents.This request is rejected as it constitutes a request for evidence which is a matter to be dealt with by the process of discovery.(f)Current position of the matters stated in Paragraph (a) – (i) of the Plaint.This request is rejected as it constitutes a request for evidence which is a matter to be dealt with by the process of discovery. Further, the current position of each case is a matter of public record which the Defendant can glean from court records.

11. Before I conclude let me deal with the Plaintiffs’ submission that the court lacks jurisdiction and power to strike out a suit for non-compliance with an order directing it supply particulars. The court has inherent power to enforce its own orders including by striking out a suit. In the case of non-compliance with an order for supply of particulars and discovery, it is settled that where there has been deliberate, wilful and contumelious non-compliance, the court may exercise it penal jurisdiction by issuing peremptory orders to enforce such compliance and in default thereof, striking out the pleading. This power has been established in many cases including Eastern Radio Service v Tiny Tots [1967] EA 392 where the Court of Appeal for East Africa held that the failure to give discovery and inspection may result in striking out of the suit. Such power must of court be exercised in exceptional circumstances (see also ABN Amro Bank NV v Kenya Pipeline Company Limited NRB CA Civil Appeal No. 149 of 2015 [2019] eKLR). At this stage though, it is not necessary to exercise this power.

12. For the reasons I have set out above, I allow the application dated 26th October 2021 on the following terms:

(a) The Plaintiff is hereby directed to provide particulars of the breakdown of the claimed sum of Kshs. 28,253,005. 00 claimed in the Plaint and tabulation of the money paid on each claim stated in paragraph 9(a) (i) and the basis/reason for such payment.(b) The particulars shall be provided within 21 days from the date hereof.(c) The costs of the application shall be in the cause.(d) The matter shall be mentioned a date to confirm compliance before the Deputy Registrar.

DATED AND DELIVERED AT NAIROBI THIS 5TH DAY OF MAY 2022. D. S. MAJANJAJUDGECourt Assistant: Mr M. Onyango.Mr Ochola instructed by G & A Advocates LLP for the Plaintiffs.Ms Wangombe instructed by L. W. Wangombe and Company Advocates for the Defendant.