ISAAC MIHIGA CHANZU V KENYA SHELL LIMITED [2009] KEHC 2094 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (MILIMANI LAW COURTS)

CIVIL CASE 496 OF 2008

ISAAC MIHIGA CHANZU T/A CHANZU ENTERPRISES …………………….........................          PLAINTIFF

VERSUS

KENYA SHELL LIMITED ………………………………………………………….DEFENDANT

RULING

This application seeks for the provision of further and better particulars to be furnished by the plaintiff to the defendant. The brief background of this matter is that the plaintiff/respondent instituted this suit against the defendant seeking inter alia for an order  by way of an injunction restraining the defendant by itself, its servants, agents, employees, officers whomsoever and whatsoever from terminating the Plaintiff’s License Contract.  A declaration that the defendant was negligent, and thus liable to compensate the Plaintiff for their negligence.

The defendant filed a defence and among other traverses, denied terminating, or threatening to terminate the license of the plaintiff, but the license expired when its term ended. The particulars of the negligence were also denied in a very lengthy response contained in the defence.  The plaintiff in their reply to the defence insisted that the defendant was responsible for the loss of his products for which the plaintiff incurred colossal losses.

On 27th February 2009, the defendant’s advocates requested for particulars under order VI rule 8 of the Civil Procedure Rules.  As per the notice of request for particulars filed herein on 17th March 2009, the plaintiff’s advocate filled an   answer to the request for particulars.  However, on going through the particulars, the defendant’s counsel contends that they realized the answers provided under paragraphs 11 – 12 of the plaint were insufficient.  This was followed by several reminders requesting the plaintiff to provide specific particulars to no avail.

This prompted the defendant to file the chamber summons  application which is brought under order VI rule 8 of the Civil procedure Rules, seeking for orders that the plaintiff be ordered to deliver to the defendant further and better particulars of the plaint in terms of  the request dated 26th February 2009.  This application is based on the grounds that the plaintiff has failed to provide adequate response to the particulars as requested.  The particulars requested are necessary for the proper conduct and preparation of this case.

In further arguments in support of this application, counsel for the defendant submitted that it is necessary for the plaintiff to provide the documents in support of the claim contained on paragraphs 11 and 12 of the plaint.  The plaintiff alleges that he suffered colossal loses but there are no particulars provided.  Several letters were written to the plaintiff without any responses.  Counsel made reference to the Supreme Court Rules which underscore the importance of providing particulars of the matters pleaded in a suit.  This is meant to prevent the other side from being taken by surprise at the trial.  Also to enable the other side to know what evidence they ought to prepare and to generally limit the generality of the pleadings.

This application was opposed by the counsel for the plaintiff who contended that the particulars supplied to the defendant were sufficient.  The names of the persons, whom the plaintiff dealt with, are provided and the answer was duly filed.  As regards the matters pleaded under paragraph 11, the plaintiff indicated how the manual calculations were arrived at, and in his opinion, those particulars are sufficient for the defendant to know what case it is facing.

Under the provisions of order VI rule 8 of the Civil Procedure Rules, which are in tandem with the provisions of order 18 rules 12 of the Supreme Court Rules Practice.  Every pleading must contain the necessary particulars of any claim or other matter pleaded.  The plaintiff gave particulars of negligence and particulars of loss and damages which are generalized claims.  The defendant sought to be provided with particulars, in response, the plaintiff alluded to written documents, manual reconciliations, weekly and monthly sales. This prompted the defendant to seek for further and better particulars in regard to this response.

It is an overriding principle particularly in civil litigation that a trial should be conducted fairly, openly, without surprises and as far as possible parties should minimize costs and time. (Per Edmund Davies L.J in Astrovlanis Compania Naviera SA v Linard (1972) 2 Q.B. 611)

I have carefully considered the pleadings herein, especially the answer to the particulars provided by the plaintiff.  The plaintiff has alluded to written alerts manual reconciliations, weekly and monthly sales.  I find that, it is necessary for further particulars regarding these items to be provided to the defendant so that they are not taken by surprise at the trial. The particulars will also enable the defendant to know what evidence to prepare for the trial.

Having so found, it is necessary for the plaintiff to respond to the particulars sought by the defendant in terms of the request dated 26th February 2009 within 14 days.  Failure to provide the particulars the defendant will be at liberty to apply for the suit to be struck out.  Costs of this application to the defendant.

RULING READ AND SIGNED AT NAIROBI THIS 3RD DAY OF JULY  2009.

M.K. KOOME

JUDGE