Paradise Safari Park Limited v Attorney General & another
The bottom line
#A Kenyan court refused to strike out defences for ignoring a document disclosure order, but gave the defendants 30 days to comply or lose their case.
What this practically means
#Executive summary
#Key legal issues
#Whether the application fell within Order 2 Rule 15 of the Civil Procedure Rules
It did not; the Plaintiff was not impugning the Defences themselves but sought striking out for non-compliance with a court order, which is outside the rule's threshold.
Order 2 Rule 15 permits striking out pleadings that disclose no reasonable cause of action, are scandalous, frivolous or vexatious, prejudice or delay fair trial, or abuse court process. The court found no allegations against the Defences under limbs (c) and (d); the complaint was purely non-compliance with a discovery order. However, guided by Article 159(2)(d), this defect alone was not fatal to the application.
Whether the Defendants complied with the discovery order of October 6, 2017
No; the documents relied on by the Defendants pre-dated the order and no documents were filed after it.
The Defendants asserted full compliance but relied on documents and correspondence predating the order. There was no evidence that the documents directed to be supplied were ever supplied, no challenge to the order, and no documents filed after its issuance despite several letters from the Plaintiff. The court therefore found the Defendants not in compliance.
Whether non-compliance with the discovery order warranted striking out the Defences
Not yet; striking out is a last resort, so the Defendants were given 30 days to comply, failing which their Defences would stand dismissed.
The court accepted that striking out for disobedience of a discovery order is available where the disobedience is willful and deliberate, citing Omar Sharif and Aga Khan Health Services. But given Article 50 fair-hearing guarantees and the last-resort nature of striking out, and contrasting Merry Beach where partial compliance sufficed, the court granted a final 30-day compliance window rather than striking out immediately.
Legal principles established
#- A party's pleadings may be struck out for non-compliance with a discovery order only where the disobedience is willful, deliberate and warrants such extreme action.
- A litigant should not be precluded from pursuing a claim or defence for failure to comply with a discovery order unless the failure was due to willful disregard of the court order.
Court orders
#- 1.The Motion dated May 25, 2022 fails (dismissed)
- 2.The Defendants granted 30 days from the date of the ruling to file the documents sought, failing which the Defences of the 1st and 2nd Defendants will stand dismissed
- 3.The Defendants shall bear the costs of the application
- Jurisdiction invoked
- Section 22 of the Civil Procedure Act and Order 2 Rule 15(1)(c) and (d) of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Paradise Safari Park Limited v Attorney General & another", Case Analysis (2023). Civil Case 1203 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17235/eng@2023-04-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.