Padhal & another v Bank of Baroda Kenya Limited & another [2022] KEHC 9841 (KLR)

Padhal & another v Bank of Baroda Kenya Limited & another (Commercial Suit 26 of 2018) [2022] KEHC 9841 (KLR) (12 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9841 (KLR)

Republic of Kenya

In the High Court at Kisumu

Commercial Suit 26 of 2018

FA Ochieng, J

July 12, 2022

Formerly ELC NO. 156 of 2016

Between

Surjit Singh Padhal A.K.A. Surjeet Singh Sawan Singh

1st Plaintiff

Malkit Singh Padhal A.K.A. Malkit Singh Sawan Singh

2nd Plaintiff

and

Bank of Baroda Kenya Limited

1st Defendant

General Equipment Co. (1978) Ltd

2nd Defendant

Ruling

The application dated July 10, 2019 was filed by the Plaintiffs, seeking Further and Better Particulars in respect to Paragraphs 7 (iv) and 7 (v) of the 2nd Defendant’s Statement of Defence.

1. The gist of the said Defence was that the 2nd Defendant had made full payment of the entire consideration.

2. The Plaintiffs believe that it was necessary to have the 2nd Defendant make a full disclosure about the specifics of each and every payment which it had allegedly made.

3. Obviously, if the 2nd Defendant provides the details of the various payments it had made, that would enable the Court and all the other parties to get a clear picture of the material facts.

4. In Barclays Bank of Kenya Ltd v Christopher Orina Kenyariri & another [2017] eKLR the Court of Appeal upheld the practice of;“……… adopting that open, honest, accountable and rational approach to litigation, that eschews hide-and- seek games and enable parties to lay before each other and before the court all materials relevant and needful for the just determination of disputes.”

5. The Kenyan Justice System has firmly adopted the practice that compels parties to not only disclose their respective Witness Statements, but also all the documentary evidence which they wish to rely upon.

6. The Courts completely frown upon attempts to sneak in evidence which had not yet been disclosed to the other parties.

7. The practice wherein a party could literally ambush the other party by producing evidence which had been kept well hidden until the party wishing to produce it feels that it was appropriate to unleash it on the unsuspecting opposite party, is a thing of the past.

8. If the 2nd Defendant had made payments, and is able to make available the requisite proof, it must do so at the earliest stage in the proceedings. I so find because it is only by so doing, that other parties will know the scope of any matters which would still be in issue.

9. It is only that which has not been answered by a Defendant, through documentary evidence, (in a case in which parties wish to rely on documents), that is deemed to remain as an issue which requires determination by the Court.

10. The effect, full and complete disclosure aids the enhancement of the overriding objective of efficient utilization of judicial time, to deliver effective justice, which is not shrouded in mystery.

11. The disclosure of further and better particulars, coupled with copies of all the requisite documentary proof, cannot prejudice the 2nd Defendant.

12. Accordingly, I order the 2nd Defendant to supply the Plaintiff, the 1st Defendant and the Court with the particulars sought in the application dated July 10, 2019.

13. The 2nd Defendant has 30 days to file and serve the said particulars.

14. The 2nd Defendant is ordered to pay to the Plaintiffs, the costs of the application dated July 10, 2019.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 12TH DAY OF JULY 2022FRED A. OCHIENGJUDGE