[1998] KECA 80 (KLR)
The Court of Appeal found that the appellants not only failed to supply the particulars sought by the respondents but also failed to do so within a reasonable time, instead directing the respondents to obtain the information themselves. The appellants' conduct was characterized by extreme arrogance and wilful...
Source-derived case information.
- Citation
- [1998] KECA 80 (KLR)
- Parties
- Appellant: Salmin Mbarak; Appellant: Laabid Said; Appellant: The United Gassam Arab Association; Respondent: Hadi Karama; Respondent: Awadh Mbarak; Respondent: Awadh Alyaeu; Respondent: Gassam Community Welfare Society
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 97 of 1998
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- RO Kwach, E Owuor
- Legal Topics
- Dismissal for Non Compliance, Further and Better Particulars, Judicial Discretion, Interlocutory Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Salmin Mbarak
Appellant
Laabid Said
Appellant
The United Gassam Arab Association
Appellant
Hadi Karama
Respondent
Awadh Mbarak
Respondent
Awadh Alyaeu
Respondent
Gassam Community Welfare Society
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the High Court erred in dismissing the suit for failure to supply further and better particulars as ordered by the court.
- 2 Whether the dismissal was a proper exercise of judicial discretion given the conduct of the appellants.
Ratio Decidendi
The Court of Appeal found that the appellants not only failed to supply the particulars sought by the respondents but also failed to do so within a reasonable time, instead directing the respondents to obtain the information themselves. The appellants' conduct was characterized by extreme arrogance and wilful disregard of court orders, demonstrating an unwillingness to comply with the court's directions. Given these circumstances, the High Court's decision to dismiss the suit was a proper exercise of judicial discretion. The appellate court emphasized that while dismissal at an interlocutory stage is a serious matter, the appellants' conduct justified the penalty imposed. The appeal was...
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
46 paragraphs
IN THE COURT OF APPEAL
AT MOMBASA
(CORAM: KWACH, TUNOI & OWUOR, JJ.A.
CIVIL APPEAL NO. 97 OF 1998
BETWEEN
SALMIN MBARAK
LAABID SAID
THE UNITED GASSAM ARAB ASSOCIATION............... APPELLANTS
AND
HADI KARAMA
AWADH MBARAK
AWADH ALYAEU
GASSAM COMMUNITY WELFARE SOCIETY.............. RESPONDENTS
(Appeal from the Ruling of the High Court of Kenya at Mombasa (Justice Mary Ang'awa) dated the 21st day of November, 1996
in
H.C.C.C. NO. 802 OF 1995)
********************
JUDGMENT OF THE COURT
The appellants, as plaintiffs, sued the respondents in the High Court of Kenya at Mombasa for a declaration that all the properties enumerated in the Plaint are the properties of an association known as the United Gassam Arab Association and that the respondents be ordered to render true and accurate account of all moneys, rent and mesne profits received on account.
The respondents requested further and better particulars from the appellants, which request was ignored. It is pertinent for us to refer to the appellants' letter dated 14th March, 1996 in reply to the request:-
"Your letter of 8th March, 1996 refers.
Please yourselves."
However, on 30th August, 1996 the appellants purported to supply the particulars in the following manner:-
" Particulars: Order VI r 8
a) -This is a matter of evidence
(b)+(c)-The particulars sought can be obtained in the Register of Societies, being public matters whose records are kept by the Registrar.
(d) -No resolution in writing was made. Agreement to sue was orally reached."
The respondents "indeed pleased themselves" and applied to the court for an order dismissing the appellants' suit on the ground that the appellants had refused to supply the particulars sought and ordered by the court. The court made the order asked for and consequently the appellants' suit was dismissed.
The main ground of appeal before us is that the learned Judge wrongly exercised her discretion in dismissing the suit given that no specific and clear order had been made requiring the appellants to do certain things or take certain steps at the risk of having the suit dismissed in default.
The record of the proceedings before us shows that not only did the appellants fail to supply the particulars sought but also did not do so within a reasonable time. They in effect informed the respondents to go and make a search for the vital information sought and took about four months to communicate with the respondents.
We are alive to the fact that the dismissal of an action for the failure to supply particulars imposes a drastic penalty; and, further that the dismissal of any action at any interlocutory stage is a very serious matter and may well work serious injustice.
But, in the matter before us the appellants exhibited extreme arrogance at every stage of the proceedings and had shown a wilful disregard of all orders made by the superior court. Further, they had demonstrated by their conduct that they were unwilling to comply with whatever orders the court was going to make. In the circumstances, the learned Judge cannot be faulted for the orders she made. The appellants clearly did not deserve any further indulgence from the court.
This appeal is devoid of merit and is ordered dismissed with costs to the respondents. This is our order.
Dated and delivered at Mombasa this 16th day of July, 1998.
R. O. KWACH
...............
JUDGE OF APPEAL
P. K. TUNOI
...............
JUDGE OF APPEAL
E. OWUOR
...............
JUDGE OF APPEAL
I certify that this is
a true copy of the original.
DEPUTY REGISTRAR