M'rukaria M’Raria & 139 others v Mwichuiri Farmers  Company Limited

Court of Appeal, at Nyeri October 27, 1995

Gachuhi, Kwach & Shah JJ A

Civil Appeal No 136 of 1995

(Appeal from the order of the High Court of Kenya at Nyeri (Lady Justice M A Ang’awa) dated 4th March, 1994, in HC Misc Civil Application No 88 of 1992)

Civil Practice and Procedure - interrogatories-the stage at which may be administered.

Civil Practice and Procedure - interrogatories - trial judge making an order for the administration of interrogatories after the commencement of trial - whether order is valid.

Civil Practice and Procedure - interrogatories - party asking for interrogatories which in nature seeks evidence from the plaintiff-whether interrogatories can include evidence a party hopes to adduce in the case.

The High Court after commencement of the trial in which six witnesses had been heard ordered that 140 plaintiffs do all and each of them answer interrogatories numbered 1, 2, 3, 4, 5 and 6 as sought by the respondent.

It was not in dispute that summons for directions was dealt with before the trial began during which the only orders made were orders 22 and 23 of the summons for directions, that is to say, the Deputy Registrar who dealt with the summons decided the venue of trial and length of trial only. No other points which ought to have been considered were considered at all.

(Editorial note: Order 51 was deleted by LN No 36 of 2000.

Held:

1. Order 51 of the Civil Procedure Rules specifically provides that it is the duty of the court to consider at the first hearing of a summons for directions all matters which require consideration.

2.The hearing of the summons for directions is the proper time to consider such matters as interrogatories, discovery and inspection although the

steps as regards interrogatories may, in appropriate circumstances, be taken even before summons for directions if circumstances so warrant.

3. In this suit the superior court proceeded to give leave to administer  interrogatories after the trial commenced. That in the court’s view is wrong and amounts to an improper exercise of the judge’s discretion.

4. Interrogatories can only be administered, timeously, to obtain specific admissions but not evidence. It is clear from the nature of the interrogatories 1, 3 and 4 that the defendant is seeking to obtain in advance, the evidence the plaintiffs have.

Appeal allowed.

Cases

No cases referred to.

Statutes

Civil Procedure Rules (cap 21 Sub Leg) order LI rules 3, 4(2)

Advocates

Mr Sichangi for the Respondent