[2006] KEHC 990 (KLR)
The court found that the particulars sought by the plaintiff were necessary for a fair trial and to prevent surprise. The defendant, having alleged overpayment in its defence, bore the onus of providing particulars to support that allegation. The court held that the plaintiff was entitled to know when and for which...
Source-derived case information.
- Citation
- [2006] KEHC 990 (KLR)
- Parties
- Applicant: Mamicha & Co Advocates; Respondent: City Council of Nairobi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 117 of 2006
- Procedural Posture
- Civil Suit / Interlocutory Application
- Outcome
- Application allowed. Orders granted as prayed.
- Legal Topics
- Particulars of Pleadings, Striking Out Defence, Discovery and Disclosure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mamicha & Co Advocates
Applicant
City Council of Nairobi
Respondent
Procedural Posture
Civil Suit / Interlocutory Application
Legal Issues
- 1 Whether the defendant should be compelled to supply particulars of the alleged overpayment as requested by the plaintiff.
- 2 Whether failure to supply such particulars should result in the striking out of the defendant's defence.
Ratio Decidendi
The court found that the particulars sought by the plaintiff were necessary for a fair trial and to prevent surprise. The defendant, having alleged overpayment in its defence, bore the onus of providing particulars to support that allegation. The court held that the plaintiff was entitled to know when and for which cases the alleged overpayment occurred. The defendant's failure to provide these particulars would prejudice the plaintiff and undermine the fairness of the proceedings. Accordingly, the court ordered the defendant to supply the requested particulars within 30 days, failing which the defence would be struck out.
Court Disposition
Application allowed. Orders granted as prayed.
Orders
- The defendant shall within 30 days from the date of service of this order serve upon the plaintiff particulars to the following request: (a) When was the overpayment made? (b) For which case(s) was the overpayment made?
- In default of supply of particulars as above, the defendant’s defence dated 6th June 2006 shall be struck out, without further orders of this court.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MILIMANI LAW COURTS
Civil Suit 117 of 2006
Mamicha & Co Advocates………………………………………………..APPLICANT
Versus
City Council of Nairobi………………………………………………..RESPONDENT
RULING
The plaintiff presented an opposed chamber summons dated 12th July 2006.
The Orders sought therein are that:-
(i) The defendant be compelled by order of this Honourable court to supply the plaintiff with the particulars sought in its request for particulars dated 9th June 2006 within such period that this court may prescribe;
(ii) That in the event of the defendant’s default to supply the particulars after such order the defendant’s defence be struck out with costs.
In its grounds the plaintiff state that unless the particulars are supplied the plaintiff shall be taken by surprise at the trial and thereby suffer prejudice.
The plaintiffs suit against the defendant seeks the recovery of advocate’s clients costs incurred in various suits where the plaintiff represented the defendant. The plaintiff’s total claim is for kshs 6,670,648. 05. The plaint gave details of the various cases where the plaintiff represented the defendant.
In response to the plaintiff’s claim the defendant filed a short defence consisting of 4 paragraph. Only paragraph three responded to the claim in the following terms.
“In reply to paragraph 5,6,7 of the plaint, the defendant avers that in an earlier payment by the defendant to the plaintiff, it was discovered that the plaintiff was overpaid by kshs 7 million particulars whereof are within the plaintiff’s knowledge.”
The paragraph provoked the request for particulars and the present application.
The request for particulars is the following terms:-
“of paragraph 3
a) When was the over payment made?
b) What is the exact amount of money that was overpaid?
c) For which case(s) was the overpayment made?
All those requests except (b) are necessary to enable the plaintiff know the case it is to face and to remove the element of surprise. The manner in which paragraph 3 of the defence is, shows that the onus of proving the alleged over payments is squarely upon the defendant and it is then just the defendant to answer the request. If the defendant gives the particulars sought this will have the effect of narrowing the issues to be considered at trial.
The court will therefore grant the following orders:-
(1) The defendant shall within 30 days from the date of service of this order serve upon the plaintiff particulars to the following request:-
Of paragraph 3 of defence:
a) When was the over payment made?
b) For which case(s) was the over payment made?
(2) In default of supply of particulars as in (1) above the defendant’s defence dated 6th June 2006 shall be struck out, without further orders of this court.
(3) The costs of the chamber summons dated 12th July 2006 shall be the plaintiffs in any event.
October 13, 2006
Kasango, J