[2018] KEHC 6504 (KLR)
The court found that although the Defendant attempted to produce a document not included in the list of documents filed at pretrial, errors can occur. However, advocates must exercise care to avoid prejudicing their client's case. The court determined that, in the interest of justice and to enable effective...
Source-derived case information.
- Citation
- [2018] KEHC 6504 (KLR)
- Parties
- Plaintiff: Powerpack Hydralics Ltd; Defendant: Jacinta M. Ndegwa
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 18 of 2009
- Procedural Posture
- Civil Case / Ruling on Objection During Trial
- Outcome
- Objection dismissed; Defendant allowed to file correct document; costs awarded to Plaintiff.
- Judges
- LM Njuguna
- Legal Topics
- Admissibility of Documents, Pretrial Procedure, Documentary Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Powerpack Hydralics Ltd
Plaintiff
Jacinta M. Ndegwa
Defendant
Procedural Posture
Civil Case / Ruling on Objection During Trial
Legal Issues
- 1 Whether a document not included in the list of documents filed at pretrial can be produced as evidence during trial.
- 2 Whether the production of a different document from that filed prejudices the opposing party and amounts to an unfair trial.
- 3 Whether the court should allow the filing of the correct document after the commencement of trial.
Ratio Decidendi
The court found that although the Defendant attempted to produce a document not included in the list of documents filed at pretrial, errors can occur. However, advocates must exercise care to avoid prejudicing their client's case. The court determined that, in the interest of justice and to enable effective determination of the issues, the Defendant should be allowed to file the correct document. To address the prejudice to the Plaintiff, the court ordered the Defendant's counsel to personally pay costs. The objection to the document's production was dismissed, but the Defendant was directed to file the correct document within 14 days by way of a further list of documents.
Court Disposition
Objection dismissed; Defendant allowed to file correct document; costs awarded to Plaintiff.
Orders
- Objection to production of document is dismissed.
- Defendant to file the correct document by way of a further list of documents within 14 days.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYAAT NAIROBI
CIVIL CASE NO. 18 OF 2009
POWERPACK HYDRALICS LTD....................PLAINTIFF/APPLICANT
VERSUS
JACINTA M. NDEGWA..............................DEFENDANT/RESPONDENT
RULING
1. The matter herein is part-heard. On the 19th day of April 2018, when it came up for hearing, counsel for the Defendant raised an objection to the production of the notification of sale. The bone of contention is that the document produced and marked as exhibit 13 is not the same as the one availed in the bundle of documents filed in court by the Defendant. He applied that the said document be expunged from the record.
2. The issue herein arose during the cross-examination of Moses Kariuki Macharia who testified as DW2 but who had to be stood down following the said objection. In his evidence in chief he applied to adopt his witness statement dated the 22nd November, 2016 which the court adopted as his evidence in chief. He also produced several documents as exhibits.
3. The reasons for the objection are that when the matter came up for pre-trial conference on the 20th September 2016, it was confirmed that the documents filed are the ones that would be produced at the trial. Counsel argued that it was a surprise for the Defendant to produce a document that is not on record. That in so doing, the Plaintiff would be prejudiced in that he did not have the opportunity to subject the document to the pretrial procedures and that would amount to unfair trial on his part.
4. In her response, counsel for the Plaintiff admitted that the document in the Defendant’s list of documents filed on 24th November, 2016 is different from the one sought to be produced but averred that the document dated 31st July, 2009 was filed by error.
5. I have perused through the record and I note that the Defendant filed her list of documents on the 24th day of November, 2016 and the notification in issue is not among the documents listed therein.
6. Though the matter was filed way back in the year 2009, before the revised Civil Procedure Rules 2010, the parties herein complied with Order 11 by filing the list of documents and witnesses. Upon perusal of the two documents, it is clear that they are different and therefore the concern raised by the counsel for the Plaintiff is a genuine one.
7. I have considered the objection raised and the response thereto. It is common knowledge that errors do happen but on the other hand, an advocate ought to be careful so that he/she does not prejudice his/her clients case by filing the wrong documents like what happened in this case. I find that it is only fair and in the interest of justice that the Defendant be allowed to file the correct document to enable the court to effectually determine the issues in contention in the suit herein.
8. In the end, the objection is hereby dismissed but counsel for the Defendant is hereby ordered to personally pay costs of Ksh.5,000 to the Plaintiff. The document to be filed by way of a further list of documents within 14 days from today.
Dated, Signed and Delivered at Nairobi this 10thDay of May, 2018.
…………………………….
L. NJUGUNA
JUDGE
In the Presence of
…………………………. For the Applicant
…………………………. For the Respondent