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ELCDismissedHCCC consolidated matters arising from HCCC No. 289 of 2009 and HCCC No. 285 of 2010 (suit filed 25/11/2015)· [2021] KEELC 3016 (KLR)

Paragon Electronics Limited v Velos Enterprises Limited [2021] KEELC 3016 (KLR)

High Court of Kenya
14 April 2021
1,867 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a first-instance ruling on the Plaintiff's application dated 21/9/2020 in a long-running land dispute, seeking leave to introduce as additional evidence an affidavit dated 13/3/2018 sworn by the Defendant's director in HCCC No. 289 of 2009 (consolidated with HCCC No. 285 of 2010) concerning rental income from the Suit Property, and leave for the Plaintiff's witness, Mr. Bulent Gulbahar, based in Dubai, to testify via video link on account of the Covid-19 pandemic. The Plaintiff, whose suit filed on 25/11/2015 claims Kshs. 70,662,000/= as loss of rent based on a Topmark Valuers valuation report, argued that the affidavit was necessary to prove loss of rent, that the hearing had not commenced, and that Sections 1B of the Civil Procedure Act and 63A(1) of the Evidence Act permitted video-conference testimony. The Defendant opposed, contending the Plaintiff had ample opportunity to file documents, that the real reason the witness could not travel was an outstanding warrant of arrest for assaulting guards at the Suit Property on 3/3/2019, and that the Plaintiff lacked candour. The court framed one issue: whether the application should be allowed. It held that the affidavit was within the Plaintiff's knowledge when it filed its further list of documents on 24/2/2020, that no explanation was given for the late introduction after pretrial, and that the affidavit would not assist in determining reliefs pegged on the valuation report. The video-link request was overtaken by events since the hearing fixed for 30/9/2020 did not proceed, and the uncontroverted averment of the outstanding arrest warrant weighed against the Plaintiff. The application was dismissed with costs to the Defendant.

Key legal issues

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01

Whether additional evidence could be introduced after pretrial and before hearing

Holding

The application was refused because the affidavit was within the Plaintiff's knowledge when it filed its further list of documents on 24/2/2020 and no explanation was given for the delay

Reasoning

The court examined the plaint and noted that the claim for loss of rent was based on a valuation report by Topmark Valuers, not on rental income admitted in the consolidated suits. The affidavit sought to be introduced was a party to those proceedings and thus within the Plaintiff's knowledge at the time of filing its further list of documents. Given the protracted dispute, the Plaintiff should have identified its documents earlier, and no explanation was offered for introducing the document after pretrial.

p. 2
02

Whether the witness could testify via video link on grounds of the Covid-19 pandemic

Holding

The court declined to exercise its discretion in favour of the Plaintiff on the video-link application

Reasoning

The court found the application overtaken by events because the hearing of 30/9/2020 did not proceed, and noted the unsettled pandemic situation including the third wave and developing vaccines, meaning the witness could in due course travel to Kenya. Further, the Defendant's averment that a warrant of arrest was outstanding against Mr. Gulbahar was not controverted, and the Plaintiff did not explain when the witness left the country or when he was expected to return before the pandemic.

p. 2

Legal principles established

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  • A party seeking relief must be candid with the court; lack of candour disentitles a party from the relief sought
  • A plaintiff is expected to know at the time of filing suit, and when filing further lists of documents, which documents it will rely on to prove its claim

Court orders

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  1. 1.The court declines to grant the orders sought in the application dated 21/9/2020
  2. 2.The Defendant is awarded the costs of the application dated 21/9/2020

Authorities

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Legislation

  • Civil Procedure ActSection 1B
  • Evidence ActSection 63A(1)

Cases cited (5)

  • In Re Estate of Roger Bryan Robson (Deceased)
    [2020] eKLR
  • Joan Marie Schultz v George Mburu Wachira and Another
    [2019] eKLR
  • Jubilee Holdings Limited and Another v Bupa Insurance Services Limited and Another
    [2019] eKLR
  • Joseph Mumero Wanyama v Jared Wanjala Lyani and another
    [2019] eKLR
  • Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Limited
    [1989] eKLR
Jurisdiction invoked
Original civil jurisdiction of the High Court over the consolidated suits; application under the Civil Procedure Act (overriding objective, Section 1B) and Section 63A(1) of the Evidence Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Paragon Electronics Limited v Velos Enterprises Limited [2021] KEELC 3016 (KLR)", Case Analysis (2021). HCCC consolidated matters arising from HCCC No. 289 of 2009 and HCCC No. 285 of 2010 (suit filed 25/11/2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3016/eng@2021-04-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.