[2023] KEHC 26472 (KLR)
The court found that the plaintiff's witness was due to leave the jurisdiction before the scheduled hearing dates and that his unavailability could prejudice both parties if cross examination did not occur. While acknowledging the respondent's counsel's scheduling constraints, the court determined that the interests...
Source-derived case information.
- Citation
- [2023] KEHC 26472 (KLR)
- Parties
- Plaintiff: Manchester Outfitters Suiting Division Now Called King Woolen Mills Ltd; Plaintiff: Galot Industries Ltd; Defendant: Standard Chartered Financial Service Limited; Defendant: A.O Gregory & C.D Cahili
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 340 of 2006
- Procedural Posture
- Civil Case / Ruling on Interlocutory Application to Vary Hearing Dates
- Outcome
- Application allowed. Hearing date for cross examination and re-examination of PW1 fixed for 17/1/2024 at 8:30am.
- Judges
- A Mabeya
- Legal Topics
- Adjournment of Hearing, Witness Cross Examination, Court Discretion, Case Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Manchester Outfitters Suiting Division Now Called King Woolen Mills Ltd
Plaintiff
Galot Industries Ltd
Plaintiff
Standard Chartered Financial Service Limited
Defendant
A.O Gregory & C.D Cahili
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Application to Vary Hearing Dates
Legal Issues
- 1 Whether the hearing dates fixed for cross examination of the plaintiff's witness should be varied to an earlier date due to the witness's impending departure from Kenya.
- 2 Whether the interests of justice require balancing the convenience of counsel and the availability of the witness.
Ratio Decidendi
The court found that the plaintiff's witness was due to leave the jurisdiction before the scheduled hearing dates and that his unavailability could prejudice both parties if cross examination did not occur. While acknowledging the respondent's counsel's scheduling constraints, the court determined that the interests of justice required prioritizing the witness's availability. The court exercised its discretion to fix an earlier date for cross examination and re-examination, directing the plaintiff to ensure the witness's presence before departure. This approach balanced the need for effective cross examination with the practical realities of the witness's impending absence, ensuring...
Court Disposition
Application allowed. Hearing date for cross examination and re-examination of PW1 fixed for 17/1/2024 at 8:30am.
Orders
- The application to vary the hearing dates is allowed.
- PW1 to attend court on 17/1/2024 at 8:30am for cross examination and re-examination.
Full Case Text
Judgment text and source record
29 paragraphs
Manchester Outfitters Suiting Division Now Called King Woolen Mills Ltd & another v Standard Chartered Financial Service Limited & another (Civil Case 340 of 2006) [2023] KEHC 26472 (KLR) (Commercial and Tax) (15 December 2023) (Ruling)
Neutral citation: [2023] KEHC 26472 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)
Commercial and Tax
Civil Case 340 of 2006
A Mabeya, J
December 15, 2023
Between
Manchester Outfitters Suiting Division Now Called King Woolen Mills Ltd
1st Plaintiff
Galot Industries Ltd
2nd Plaintiff
and
Standard Chartered Financial Service Limited
1st Defendant
A.O Gregory & C.D Cahili
2nd Defendant
Ruling
1. The Motion dated 17/11/2023 by the plaintiff is brought under Order 18 Rule 9 of the Civil Procedure Rules. It seeks the variation of the hearing dates of 11th through 14th March, 2024 to a date earlier than 6/1/2024. The application was supported by the affidavits of Mohan Galot and Daniel Kabiru sworn on 17/11/2023.
2. The grounds thereof are that Daniel Kabiru has testified for the plaintiff but yet to be cross examined by the 2nd defendant has since gotten a job outside the country and will be leaving Kenya before 6/1/2024. That he will not be able to return for further cross examination on either of the days the matter is fixed for hearing.
3. The application is opposed by the 2nd defendant through the replying affidavit of Paul Chege, Advocate. He deposed that the said witness is due to be cross examined on 11th through 14th March, 2024 in open Court. That the said witness can be heard virtually. That the Advocate was fully engaged in pre-trials and other matters until the end of term. That no dates should be imposed on him.
4. I have considered the representations by the Learned Counsels and the contestations of the parties. It is not in dispute that the witness has hitherto been cross examined at length by the 1st defendant. The last time the matter was in Court Mr. Chege implored the Court to grant him time to prepare his cross examination so that he would take a short time in his cross examination.
5. I note that the witness is leaving the jurisdiction of the Court by 6/1/2024. Wherever he is going to be employed, no one can be sure if he will be granted time to attend this Court. He has stated that he may not return soon.
6. The Court has to balance between the fights of the parties. If the witness goes without cross examination, that would prejudice the 2nd defendant and the plaintiff. If the court imposes a near date Mr. Chege says he is very busy he will not do a good job on the case.
7. That being the case, balancing the competing interests of the parties, I would impose the date of 17/1/2024 for cross examination and re-examination. Let the plaintiff prevail over the witness to wait and post pone his departure for at least 2 weeks. It will not be demanding too much if he did so.
8. Accordingly, I allow the application. I direct that PW1 does attend Court on 17/1/2024 at 8. 30am for cross examination and re-examination.
It is so ordered.
DATED AND DELIVERED AT NAIROBI THIS 15TH DAY OF DECEMBER, 2023. A. MABEYA, FCI ArbJUDGE