[2008] KEHC 3174 (KLR)
The court found that the plaintiff's application for discovery was an attempt to obtain proof of the defendant's case rather than to discover documents relevant to matters in question in the suit. The supporting affidavit failed to specify reasons for seeking the documents or to allege their relevance to the issues...
Source-derived case information.
- Citation
- [2008] KEHC 3174 (KLR)
- Parties
- Plaintiff: Salim Ali Al-Asad; Defendant: Nairobi Hospital Ltd
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 299 of 2003
- Procedural Posture
- Civil Suit / Interlocutory Application Ruling
- Outcome
- application dismissed with costs
- Legal Topics
- Discovery of Documents, Striking Out Defence, Affidavit Evidence, Order X Rules, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Salim Ali Al-Asad
Plaintiff
Nairobi Hospital Ltd
Defendant
Procedural Posture
Civil Suit / Interlocutory Application Ruling
Legal Issues
- 1 Whether the defendant should be compelled to make discovery by filing and serving a list of documents verified by affidavit.
- 2 Whether the defendant should provide verified medical notes and reports pertaining to the deceased.
- 3 Whether failure to comply with discovery should result in striking out the defence.
Ratio Decidendi
The court found that the plaintiff's application for discovery was an attempt to obtain proof of the defendant's case rather than to discover documents relevant to matters in question in the suit. The supporting affidavit failed to specify reasons for seeking the documents or to allege their relevance to the issues in dispute. As such, the plaintiff did not satisfy the requirements of Order X Rule 11(1) of the Civil Procedure Rules. The court concluded that the application was without merit and declined to grant the orders sought.
Court Disposition
application dismissed with costs
Orders
- The plaintiff's application for discovery is dismissed with costs.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Civil Suit 299 of 2003
SALIM ALI AL-ASAD……….……………………………PLAINTIFF
VERSUS
NAIROBI HOSPITAL LTD………….…………………DEFENDANT
RULING
I have before me an application expressed to be brought under Order X Rules 11 and 13 of the Civil Procedure Rules. The application is by the plaintiff and seeks the following orders:-
1) That the defendant do make discovery by filing and serving upon the plaintiff a list of documents verified by an affidavit within 14 days from the date hereof.
2) That the defendant do provide verified medical notes and reports pertaining to the deceased within 14 days from the date hereof.
3) That in default of (1) or (2) above the defence be struck out.
The application is made on the ground that the defendant has failed to comply with a Notice of discovery. The application is supported by an affidavit sworn by Syed Kassim Shah the plaintiff’s advocate. In the affidavit it is deponed that a Notice of discovery was served upon the defendant’s advocates but the same has elicited no response from them to date prompting the filing of this application.
The defendant opposes the application on the basis of Grounds of Objection filed by its advocates. The grounds are that the discovery is sought of documents which do not relate to definite existing and relevant circumstances in this suit but they are evidence for the defendant and contain nothing tending to impeach he defendant’s case.
The application was canvassed before me on 28th April 2008. Counsel for the plaintiff relied entirely on the supporting affidavit and counsel for the defendant substantiated the grounds of opposition contending that the plaintiff is on a fishing expedition especially as the plaintiff himself has not given discovery.
Having perused the application and the supporting affidavit together with the Grounds of Objection and further having heard counsel’s submissions, I take the following view of this matter. I have perused the notice served upon the defendant dated 23rd February 2007. It is clear to me that the plaintiff is seeking proof of the defendant’s case under the guise of seeking discovery. That to my mind is not the function of discovery and inspection. I suspect that the plaintiff by this application may be fishing for material to support his allegations of negligence against the defendant pleaded in paragraph 7 of his amended plaint.
In any event, the affidavit in support does not specify the reasons for seeking discovery of the documents in question. It also does not allege that the documents for which discovery is sought relate to any matter in question in the suit. The plaintiff has therefore not brought himself within the ambit of Order X Rule 11 (1) of the Civil Procedure Rules.
In the premises, I decline to order the discovery sought. The plaintiff’s application is without merit. It is dismissed with costs.
Order accordingly.
DATED AND DELIVERED AT MOMBASA THIS 21ST DAY OF MAY 2008.
F. AZANGALALA
JUDGE
Read in the absence of the parties and their representatives.
F. AZANGALALA
JUDGE
21ST MAY 2008