[2006] KEHC 1600 (KLR)
The court held that while discovery is a fundamental step to ensure fair disposal of a suit and to save costs, it should not be ordered prematurely where there are pending interlocutory applications that may affect the pleadings or the scope of documents to be discovered. Since the outcome of the applications by the...
Source-derived case information.
- Citation
- [2006] KEHC 1600 (KLR)
- Parties
- Plaintiff: National Hospital Insurance Fund Board of Management; Defendant: The Deposit Protection Fund Board (as liquidators of Euro Bank Limited in Liquidation) & 4 others
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 505 of 2003
- Procedural Posture
- Civil Suit / Interlocutory Application
- Outcome
- Application for discovery adjourned pending disposal of interlocutory applications.
- Legal Topics
- Discovery of Documents, Interlocutory Applications, Case Management
- Source Language
- en
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Summary, issues, holding and outcome
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Parties
National Hospital Insurance Fund Board of Management
Plaintiff
The Deposit Protection Fund Board (as liquidators of Euro Bank Limited in Liquidation) & 4 others
Defendant
Procedural Posture
Civil Suit / Interlocutory Application
Legal Issues
- 1 Whether the plaintiff should be compelled to make discovery on oath before the disposal of pending interlocutory applications.
- 2 Whether the timing of discovery should await the outcome of preliminary applications that may affect the pleadings.
Ratio Decidendi
The court held that while discovery is a fundamental step to ensure fair disposal of a suit and to save costs, it should not be ordered prematurely where there are pending interlocutory applications that may affect the pleadings or the scope of documents to be discovered. Since the outcome of the applications by the 1st and 2nd defendants (to strike out the suit) and by the 4th defendant (for particulars) could materially impact the plaintiff's case, it would not be prudent to compel discovery at this stage. The court therefore adjourned the 5th defendant's application for discovery to await the disposal of the pending interlocutory applications.
Court Disposition
Application for discovery adjourned pending disposal of interlocutory applications.
Orders
- The 5th defendant's application for discovery dated 5th May 2006 is adjourned to await the disposal of pending interlocutory applications.
- There shall be no orders as to costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Suit 505 of 2003
NATIONAL HOSPITAL INSURANCE FUND BOARD OF MANAGEMENT…………….……….PLAINTIFF
VERSUS
THE DEPOSIT PROTECTION FUND BOARD
(as liquidators of Euro Bank Limited in Liquidation) & 4 OTHERS….......................……DEFENDANTS
R U L I N G
The 5th defendant has moved this court under Order X Rule 11 (2) of the Civil Procedure Rules seeking the following prayer: -
“That the plaintiff/respondent does within fourteen (14) days make discovery on oath of all the documents which are or have been in its possession or power relating to all matters in question in the suit.”
The 5th defendant made a request for discovery under oath and the plaintiff failed to comply within that period of request that is within the 14 days stated by the 5th defendant. 5th defendant submitted that the plaintiff’s claim related to banking transaction, which occurred in they year 2000. 5th defendant counsel submitted that it is likely that the plaintiff does intend to produce large volume of documents. He said that it has been three years since close of pleadings and accordingly discovery was not premature.
The application was opposed. Plaintiff submitted to order discovery, as sought, is at the discretion of the court. Plaintiff also said that the application for discovery was premature because of multiplicity of interlocutory applications pending before court. One filed by 1st and 2nd defendant seeking for striking out of the suit as against them. Another filed by the 4th seeking particulars. Plaintiff said that these applications will impact plaintiff’s suit depending on their outcome. Plaintiff finally said that it was not refusing to make discovery but that discovery ought to await the conclusion of those outstanding applications.
I am of the view that submissions of the plaintiff ‘hold water’. Although the general rule is that discovery ought to be made to ensure fair disposal of a suit and/or for saving costs, discovery ought to be when all the preliminary matters having been concluded, particularly where the preliminary matters have a bearing on the documents to be relied upon.
The hearing and determination of the application of 1st and 2nd defendant may indeed impact the plaintiff’s case in a certain way. To order discovery at this stage may not assist, if the plaintiff, as a consequence of that impact decides to change its pleadings.
The court indeed finds the 5th defendant’s application dated 5th May 2006, ought to await the disposal of interlocutory applications, pending, hereof. The order of the court therefore is that, that application be and is hereby adjourned, to await disposal of those application. There shall be no orders as to costs.
Orders accordingly.
MARY KASANGO
JUDGE
Dated and delivered this 20th July 2006.
MARY KASANGO
JUDGE