[2003] KEHC 546 (KLR)
The court held that since the defendants deny the plaintiff's entitlement to the amounts claimed under the contract and raise issues of breach, the case falls within the exception under Order 17 rule 1 of the Civil Procedure Rules. Therefore, the defendants are entitled to begin and tender their evidence first. The...
Source-derived case information.
- Citation
- [2003] KEHC 546 (KLR)
- Parties
- Plaintiff: Mario Scianna; Defendant: Eva Mar Thies; Defendant: Klaus Thies
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 286 of 2002
- Procedural Posture
- Civil Suit / Pre Trial Directions on Order of Evidence
- Outcome
- Direction granted; defendants to begin and tender evidence first.
- Legal Topics
- Burden of Proof, Order of Proceedings, Right to Begin, Counterclaim Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mario Scianna
Plaintiff
Eva Mar Thies
Defendant
Klaus Thies
Defendant
Procedural Posture
Civil Suit / Pre Trial Directions on Order of Evidence
Legal Issues
- 1 Which party is entitled to begin and call evidence first in the circumstances of this suit where the defendant denies liability and raises a counterclaim.
Ratio Decidendi
The court held that since the defendants deny the plaintiff's entitlement to the amounts claimed under the contract and raise issues of breach, the case falls within the exception under Order 17 rule 1 of the Civil Procedure Rules. Therefore, the defendants are entitled to begin and tender their evidence first. The plaintiff's right to begin is displaced where the defendant's defence goes beyond a mere point of law and involves a factual dispute as to the plaintiff's claim.
Court Disposition
Direction granted; defendants to begin and tender evidence first.
Orders
- The defence is to start and tender its evidence first.
Full Case Text
Judgment text and source record
10 paragraphs
IN THE HIGH COURT OF KENYA AT MOMBASA CIVIL SUIT NO. 286 OF 2002
MARIO SCIANNA ………………………… ..………. PLAINTIFF
VERSUS
1. EVA MAR THIES………………………………. 1ST DEFENDANT 2. KLAUS THIES ………………………………….. 2ND DEFENDANT
RULING
The matter came up for hearing of the main suit but before the same could commence, Mr. Kasmani for the Plaintiff sought the court’s directions as to which party should call its evidence first. This was prompted by the fact that the Defendant in their defence denied they owed the amounts claimed as they had fully paid the Plaintiff and filed a counter-claim for amounts to be spend on a Third Party to complete the works. Order 17 rule 1 of the Civil Procedure is clear and reads as follows:
“The Plaintiff shall have the right to begin unless the Defendant admits the facts alleged by the Plaintiff and contends that either in point of law or on some additional facts alleged by the Defendant the Plaintiff is not entitled to any part of the relief which he seeks, in which case the Defendant shall have the right to begin.”
In the current case the Defendant denies the Plaintiff is entitled to the amounts claimed under the contract and raises issues of breach of the said contract.
In the circumstances in my view and in the light of the provisions of Order 17 rule 1 the defence is to start and tender its evidence first.
Dated this 29th day of May 2003. P.M. TUTUI COMMISSIONER OF ASSIZE