[2017] KEHC 4528 (KLR)
The court held that the issue of whether the plaintiff's suit should be struck out for non-compliance with the order to produce documents had already been determined in the defendant's earlier application dated 23rd February 2015. In that application, the court only granted the order for production of documents and...
Source-derived case information.
- Citation
- [2017] KEHC 4528 (KLR)
- Parties
- Plaintiff: Rafiki Microfinance Bank Ltd; Defendant: Zenith Pharmaceuticals Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 607 of 2014
- Procedural Posture
- Notice of Motion / Ruling on Application to Strike Out Suit for Alleged Non Compliance With Court Order
- Outcome
- application dismissed with costs
- Legal Topics
- Striking Out of Suit, Res Judicata, Discovery and Production of Documents, Non Compliance With Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rafiki Microfinance Bank Ltd
Plaintiff
Zenith Pharmaceuticals Ltd
Defendant
Procedural Posture
Notice of Motion / Ruling on Application to Strike Out Suit for Alleged Non Compliance With Court Order
Legal Issues
- 1 Whether the defendant's application to strike out the plaintiff's suit for non-compliance with a previous court order is res judicata.
- 2 Whether the plaintiff failed to comply with the court order of 9th March 2016 regarding production of documents.
- 3 Whether striking out the suit is an available remedy in the circumstances.
Ratio Decidendi
The court held that the issue of whether the plaintiff's suit should be struck out for non-compliance with the order to produce documents had already been determined in the defendant's earlier application dated 23rd February 2015. In that application, the court only granted the order for production of documents and expressly declined to grant the prayer for striking out the suit in default. As such, the matter of striking out is res judicata and cannot be re-litigated. The defendant did not seek a review of the previous decision, and therefore, the fallback remedy of striking out is not available. The current application is dismissed as it seeks a remedy that has already been determined...
Court Disposition
application dismissed with costs
Orders
- The Notice of Motion dated 9th November (February) 2017 and filed on 9th February 2017 is dismissed with costs.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL & ADMIRALTY DIVISION
HCC NO. 607 OF 2014
RAFIKI MICROFINANCE BANK LTD.......PLAINITFF/RESPONDENT
VERSUS
ZENITH PHARMACEUTICALS LTD.........DEFENDANT/APPLICANT
RULING
1. The Notice of Motion dated 9th November, (February?) 2017, raises an issue which makes it resjudicata the Notice of Motion dated 23rd February 2015 and will therefore encounter some difficulties. The current Application seeks that the Plaintiff’s suit be struck out on the ground that the Plaintiff failed to comply with the Court Order of 9th March 2016.
2. In a Notice of Motion dated 23rd February 2015, the Defendant sought an Order in the following terms;-
1. THAT this Honourable Court does compel by way of an order of production directed to the Plaintiff to produce before this Court by way of affidavit (or otherwise as the Court may direct) originals and/or certified copies of the following documents with respect to account numbers [particulars withheld]:-
a. Duly executed account opening forms;
b. Up to date statements of account from the date the individual accounts were opened up to the date the present suit was filed (19th December 2014); and
c. Duly executed letters of offer and loan application forms.
2. THAT in default of complying with the Order for production within a period of fourteen (14) days or such other time as the Court may determine, the Plaint be struck out with costs to the Defendant.
3. The Court allowed prayer 1(c) only and ordered that the Documents be delivered within 14 days of 19th February 2016. This is what Kariuki J. held,
“In the result, it is my opinion that the Defendant’s application dated 23rd February, 2015 partially succeeds in terms of prayer 1 (c) be and is hereby allowed.The documents and information sought in the application in terms of the executed letters and loan application forms should be delivered to the Defendant within 14 days of the Court’s ruling”.
Notably prayer (2) was not allowed in its entirety.The effect was that while the Judge ordered that the Documents be produced within 14 days of this Ruling, the limb for striking out in default was not granted. To my mind prayer (2) of that Motion had been determined by that Decision albeit not in the manner that the Defendant would have wanted. It was nevertheless determined.The Defendant has not sought a Review of that Decision.
4. This Court is now told the Order made on 19th February 2016 and issued on 9th March 2016 has been breached. This is denied by the Plaintiff. But even if there was breach, is the fallback a striking out order? I hold not because whether or not striking out was to happen in default is a matter res judicate having been raised in the application of 23rd February 2015 and the Court having not granted it.
5. The Motion of 9th November (February) 2017? and filed on 9th February 2017 is hereby dismissed with costs.
Dated, Signed and Delivered in Court at Nairobi this 15th day of
June, 2017.
F. TUIYOTT
Ouma for Applicant
Thiongo for Nyaosi for Plaintiff
Alex - Court clerk