[2012] KEHC 4863 (KLR)
The court found that the application to strike out the defendants' defences lacked merit because the suit was filed before the commencement of the new Civil Procedure Rules, and both parties had failed to fully comply with the procedural requirements. The plaintiffs had not served a pre-trial questionnaire within...
Source-derived case information.
- Citation
- [2012] KEHC 4863 (KLR)
- Parties
- Plaintiff: Shafina Magre; Plaintiff: Khurum Magre; Defendant: Aga Khan Health Services (K) Ltd; Defendant: Another
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 226 of 2010
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Defences
- Outcome
- application dismissed
- Legal Topics
- Striking Out of Pleadings, Non Compliance With Civil Procedure Rules, Witness Statements, Discovery, Pre Trial Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Shafina Magre
Plaintiff
Khurum Magre
Plaintiff
Aga Khan Health Services (K) Ltd
Defendant
Another
Defendant
Procedural Posture
Civil Case / Ruling on Application to Strike Out Defences
Legal Issues
- 1 Whether the defendants' defences should be struck out for failure to file witness statements and list of documents as required by Order 7 rule 5 of the Civil Procedure Rules.
- 2 Whether judgment should be entered for the plaintiffs as prayed in the plaint.
- 3 Whether both parties have complied with the new Civil Procedure Rules.
Ratio Decidendi
The court found that the application to strike out the defendants' defences lacked merit because the suit was filed before the commencement of the new Civil Procedure Rules, and both parties had failed to fully comply with the procedural requirements. The plaintiffs had not served a pre-trial questionnaire within the prescribed time, and discovery was incomplete. Given that neither side had completely complied with the new Rules, the court declined to strike out the defences and dismissed the application. Each party was ordered to bear its own costs.
Court Disposition
application dismissed
Orders
- The application to strike out the defences is dismissed.
- Each party shall bear its own costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL CASE NO. 226 OF 2010
SHAFINA MAGRE.............................................................1ST PLAINTIFF
KHURUM MAGRE...........................................................2ND PLAINTIFF
VERSUS
AGA KHAN HEALTH SERVICES (K) LTD & ANOTHER...........DEFENDANT
RULING
Application dated 18/1/2012 is by Notice of Motion. Orders sought are:-
1. The defences of the first and second defendants dated 2nd June and 3rd June 2010 respectively be struck out with costs to plaintiffs.
2. The judgment be entered for the plaintiffs against the defendants as prayed in the plaint.
The grounds upon which the application is based are that the Defendants defences were filed without accompanying witness statements, List of copies of documents in contravention of mandatory provisions of Order 7 rule 5 Civil Procedure Rules. And the Defendants have persisted in failure to comply. And that the defences on record are incompetent and should be struck out with costs to the plaintiffs.
The application is supported by affidavit of Mohamed Zahir Ud-Din Ahmad Malik which shows that both defendants filed their defences on 3rd June 2010 and the pleadings closed. The applicants proposed their issues and forwarded the same to Defendants for their response within 14 days.
The defendants failed to respond. However as between plaintiffs and the first and second defendants proceeded to file issues on 14/9/2010.
On 21/9/2010 the first Defendant advocate served a list of copies of documents without the witness statements and the second defendant advocate filed supplementary list of documents.
It is sworn that Defendants have not furnished witness statements in compliance with the procedure. The applicant has granted indulgence but the Defendants have neglected and refused to furnish their witnesses statements and documents as aforesaid. It is sworn that the Defendants are not interested in a timeous and expeditious disposal of this suit and the Defences ought to be struck off.
An affidavit sworn by Zul Mohamed on 15th February 2012 was served on the advocate for first Defendant . Another affidavit sworn by Samir Inamdar on 16/2/2012 was filed on 17/2/2012 for second defendant.
It appears that the suit was filed by the plaintiff before the commencement of new Rules which came into effect on 17/12/2010.
The plaintiffs have not served a pre-trial questionnaire within prescribed time. Furthermore the plaintiff and first defendant have not completed discovery of hospital records and the case has not been listed. The application is without merit which is hereby dismissed.
Each party shall bear its costs considering none of them have completely complied with the new Rules.
Orders accordingly.
Dated and delivered this 27th day of March, 2012
J. KHAMINWA
JUDGE