[2006] KEHC 1389 (KLR)
The court held that while parties are required to make discovery and file documents they intend to rely on, the failure to do so does not automatically warrant the striking out of a defence. Instead, the consequence of non-compliance with discovery obligations is that the defaulting party will not be permitted to...
Source-derived case information.
- Citation
- [2006] KEHC 1389 (KLR)
- Parties
- Plaintiff: Nelson Macharia Muhuhu; Defendant: Paul Mwangi Thiomo; Defendant: Fredrick Mwangi Mwai
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1813 of 1998
- Procedural Posture
- Civil Case / Ruling on Notice of Motion to Strike Out Defence
- Outcome
- application dismissed
- Judges
- JL Osiemo
- Legal Topics
- Discovery of Documents, Striking Out Defence, Non Compliance With Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Nelson Macharia Muhuhu
Plaintiff
Paul Mwangi Thiomo
Defendant
Fredrick Mwangi Mwai
Defendant
Procedural Posture
Civil Case / Ruling on Notice of Motion to Strike Out Defence
Legal Issues
- 1 Whether the defendants' defence should be struck out for failure to file and serve a list of documents as ordered by the court.
- 2 Whether failure to comply with discovery orders automatically warrants striking out of the defence.
Ratio Decidendi
The court held that while parties are required to make discovery and file documents they intend to rely on, the failure to do so does not automatically warrant the striking out of a defence. Instead, the consequence of non-compliance with discovery obligations is that the defaulting party will not be permitted to refer to or produce such documents in evidence during the hearing. The court found that the plaintiff's application to strike out the defence for failure to file and serve a list of documents was not tenable and dismissed the application, with costs to be in the cause.
Court Disposition
application dismissed
Orders
- The plaintiff's application to strike out the defence is dismissed.
- Costs to be costs in the cause.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS) Civil Case 1813 of 1998
NELSON MACHARIA MUHUHU…………...............................................………………….PLAINTIFF
VERSUS
PAUL MWANGI THIOMO
FREDRICK MWANGI MWAI ………………….................................................………DEFENDANTS
RULING
The plaintiff by way of this Notice of Motion brought under the provisions of Order X Rule 20 and Order L Rule 1 of the Civil Procedure Rules seeks orders that the defendants defence filed herein be struck out with costs on the ground that the defendant has failed to comply with this court’s order made on 23rd October 2003 requiring the defendants to file their list of documents within 14 days.
The application is supported by an affidavit sworn by G. Kamonde in which he avers that on 23rd October 2003 this Honourable Court made an order that the defendants do file and serve their list of documents within 14 days that; when he attempted to serve the order upon Messrs K. Mwaura and Co. Advocates on record for the defendant he declined to accept service on the ground that they were no longer on record for the defendant. But on perusal of the Court Record it is evident that the defendant did indeed file a Police Abstract under the Defendant’s list of documents.
But that notwithstanding it is not a requirement that the court do order a party to make discovery and file and serve a list of documents.
What is required is that if a party intends to use certain documents in support of his case, then he is required to make discovery of the same, file them and serve the other party.
The consequences of failure to make discovery are that the party will not be allowed to refer to them or produce them in evidence during the hearing.
The plaintiff’s application for orders that the defendant’s defence be struck out for failure to file and serve a list of documents is not tenable and the same is dismissed. Costs be costs in the cause.
Dated and delivered at Nairobi this 13th day of September 2006.
J.L.A. OSIEMO
JUDGE