Case Metadata |
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| Case Number: | Civil Appeal 5 of 1983 |
|---|---|
| Parties: | Bhandari Construction Company v Standard Joinery & Building Company |
| Date Delivered: | 06 Oct 1983 |
| Case Class: | Civil |
| Court: | Court of Appeal at Nakuru |
| Case Action: | Judgment |
| Judge(s): | Zakayo Richard Chesoni, Alister Arthur Kneller, Chunilal Bhagwandas Madan |
| Citation: | Bhandari Construction Company v Standard Joinery & Building Company [1983] eKLR |
| Advocates: | RL Aggarwal for Appellant, CV Patel for Respondent |
| Court Division: | Civil |
| Parties Profile: | Individual/Private Body/Association v Individual/Private Body/Association |
| County: | Nakuru |
| Advocates: | RL Aggarwal for Appellant, CV Patel for Respondent |
| Case Summary: | Bhandari Construction Company v Standard Joinery & Building Company Court of Appeal, at Nakuru October 6, 1983 Madan, Kneller JJA & Chesoni Ag JA Civil Appeal No 5 of 1983 Judicial discretion - power to dismiss suits - dismissal of suit for failure to supply particulars within time specified in court order - application to dismiss made after supply of particulars and filing of defence - plaintiff’s offer to pay costs - suit dismissed - whether discretion to dismiss suit wrongfully exercised. Civil Practice and Procedure - interlocutory pleadings - particulars - request for - order by court to supply particulars within prescribed time - failure to supply within stipulated time - effect of - application to dismiss on grounds of failure to supply on time - factors to be considered – exercise of discretion to dismiss - principles applicable. The appellant sued the respondent in the High Court for the recovery of money on account of goods sold and services rendered. After the appellant failed to comply with a request for further particulars, the respondent obtained an order requiring the appellant to supply the particulars within seventy days. After the particulars were supplied, the respondent, who had by then filed a defence, applied for an order dismissing the appellant’s suit on the grounds that the particulars had been supplied late and that they hadn’t been in the prescribed form. The court granted the order sought notwithstanding that the appellant had offered to pay the respondent the costs of the application. The appellant appealed. Held: 1. It amounts to wrong exercise of discretion to dismiss an action for failure to supply further particulars where the particulars have been supplied before the order for dismissal is granted and after a defence has been filed. The fact that the particulars had been supplied, a defence filed and an offer made to pay costs to compensate the defendant should have been taken into account. (Obiter Madan JA) “Costs is the soothing balm which cures most procedural grievances in legal proceedings.” 2. An order for dismissal should be absolutely and perfectly precise in terms and ought to state clearly that unless it is not carried out, the action will be dismissed. The dismissal of an action at an interlocutory stage is a very serious matter and may well work serious injustice unless carefully exercised (Albalian v Innous [1936] 2 All ER 838). 3. The defence, in which the respondent denied all liability and claimed that it had fully settled the appellant’s claim before the filing of the suit, indicated that the dismissal of the action would occasion injustice. Appeal allowed. Cases 1. Reiss v Woolf [1952] 2 All ER 3 2. Albalian v Innous [1936] 2 All ER 838 Statutes Civil Procedure Rules (cap 21 Sub Leg) Appendix B, Form No 15 Advocates RL Aggarwal for Appellant CV Patel for Respondent |
| History Advocates: | Both Parties Represented |
| Case Outcome: | Appeal allowed |
| Disclaimer: | The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information |
IN THE COURT OF APPEAL
AT NAKURU
(CORAM: MADAN, KNELLER JJA & CHESONI AG JA)
CIVIL APPEAL NO. 5 OF 1983
BHANDARI CONSTRUCTION COMPANY …………………… APPELLANT
VERSUS
STANDARD JOINERY & BUILDING COMPANY…….…….… RESPONDENT
JUDGMENT
The appellant as the plaintiff sued the respondent/defendant in the High Court for the recovery of Kshs 104,105 for goods sold and delivered, and/or services rendered to the defendant. The defendant’s request for the supply of further and better particulars of paragraphs three and five of the plaint in a normal manner was ignored by the plaintiff. On the defendant’s application the court ordered the plaintiff on June 7, 1982 to supply the particulars asked for in the prescribed form No 15, Appendix B of the Civil Procedure Rules, within seventy days. The plaintiff purported to supply the particulars asked for but more than seventy days later. The defendant applied to the court for an order dismissing the plaintiff’s suit on the grounds that the particulars were supplied late by the plaintiff, and they were also not in conformity with form No 15 as ordered by the court.
The court made the order asked for and the plaintiff’s suit was dismissed even though the particulars had been supplied before the hearing date of the defendant’s application, and notwithstanding also the plaintiff’s offer to pay the defendant’s costs of the application. The court said the ends of justice so dictated.
The plaintiff has appealed in the main on the grounds that the learned judge exercised this discretion wrongly in dismissing the plaintiff’s suit, and also in the holding that the court’s order of June 7 was mandatory. As regards the second objection, the court’s order was mandatory, and the plaintiff failed to obey it. Notwithstanding that, we agree that the learned judge exercised his discretion wrongly, as in this particular instance, not only the particulars had already been supplied when the order dismissing the plaintiff’s suit was made, the defendant had also filed its defence about three months previously which was merely a denial of liability in toto, coupled with a further averment that the plaintiff’s claim had already been paid in full and settled by the defendant before the filing of the suit, the onus of proving which would normally have lain on the defendant, and if true, without causing any hardship.
The dismissal of an action for the failure to supply particulars imposes a drastic penalty. The same principles apply to the striking out of a particular defence as apply to the dismissal of an action; per Devlin J in Reiss v Woolf [1952] 2 All ER 3 at p 5.
Green LJ said in Abalian v Innous [1936] 2 All ER 838:
“... any order dealing with the dismissal of an action unless something is done should be absolutely and perfectly precise in its terms. The dismissal of an action at an interlocutory stage is a very serious matter and may well work serious injustice.”
With respect the learned judge erred. First, because he did not state in his order that unless the plaintiff carried it out, the action will be dismissed. Secondly, in addition to the required particulars having been already supplied, because of the nature of the plaintiff’s cause of action. Thirdly, because of the nature of the defence indicating as it did that a dismissal of the action may well cause serious injustice. Fourthly, because of the plaintiff’s offer to pay costs to compensate the defendant for the inconvenience. Costs is the soothing balm which cures most procedural grievances in legal proceedings.
For these reasons we would allow the appeal, set aside the order made by the learned judge, and direct that, subject to any further necessary interlocutory applications whether relating to particulars or other matters, the suit proceed to hearing in the normal manner.
We would make no order for costs of the appeal. The plaintiff is to blame for finding itself in its plight brought about by dilly-dallying in supplying the particulars.
Dated and Delivered at Nakuru this 6th October, 1983
C.B. MADAN
………………..
JUDGE OF APPEAL
A.A. KNELLER
………………..
JUDGE OF APPEAL
Z.R. CHESONI
………………..
Ag JUDGE OF APPEAL
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