Anwar Mohamed Bayusuf Ltd v Diamond Trust Bank Kenya Ltd [2017] KEHC 7636 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL SUIT NO. 13 OF 2013

ANWAR MOHAMED BAYUSUF LTD……………………PLAINTIFF

VERSUS

DIAMOND TRUST BANK KENYA LTD ...........................DEFENDANT

R U L I N G

1. On the 26/10/2015 the court granted leave to the defendant to amend its statement of defence within 14 days from that date.  By 4/11/2015 the amendment was duly filed.  On the 7/4/2016, the matter was listed for trial directions and Mr. Njenga for the plaintiff sought leave to file a reply to the amended defence and such leave was granted to last 14 days with additional directions that agreed issues be filed within the same 14 days.

2. By 17/8/2016 those directions had not been complied with and the court then extended the timelines to start running from the 17/8/2016.  Once again by the 18/10/2016 no compliance was forthcoming as far as agreed issues are concerned necessitating an order by the court that in default the court would frame the issues for its determination.  The matter was then stood over to the 28/2/2017, today, for case conference.

3. Today when the matter was called out, there was no representation for the plaintiff while Mr. Kuria appeared for the Defendant.  Mr. Kuria urged the court to strike out the suit for failure by the plaintiff to file witness statement and list of documents.  I reserved my decision for the afternoon to peruse the file.

4. I have perused the file and I note that the plaintiff did file witness statements, list of witnesses and list of documents with the plaint.  What appears not have been filed are the copies of the documents which I hold the view this court in ordering parties to file agreed issues did not address its mind to as the parties did not bring out that fact.

5. Although the plaintiff has shown outright reluctance to persecute this matter, interests of justice would demand that I do not dismiss the matter or strike it out on the fact revealed and on a date set for case conference.  Substantial justice demands that I would now direct as follows:-

i) The Statement of issues filed by the defendant shall be adopted as the issue for determination by the court.

ii) The plaintiff shall file and serve copies of documents in the list of documents dated 10/4/2013 within 14 days from the date this order shall have been extracted and served upon the plaintiff.

iii) If the plaintiff shall default to file the copies of documents as aforesaid, at trial, the plaintiff may be at liberty to call the witnesses who have filed witness statements but will be at no liberty to produce any documents.

iv) At trial this matter shall proceed on the basis the witness statements and documents filed only and the witness shall be called merely to adopt their statements and be cross-examined.

v) Documents so filed will be produced without the need to call the makers unless a party who desires a maker to be called serve a notice to that effect atleast 30 days before the hearing date.

vi) Todays costs are in the cause.

Read in Court in the presence of Mr. Kuria for the defendant and in the absence of the plaintiff.

Dated and delivered at Mombasathis 28thday of February 2017.

HON. P.J.O. OTIENO

JUDGE