[2007] KEHC 1626 (KLR)
The court found that the delay in serving the amended defence and counterclaim was explained by the absence of the defendants in Italy and the inability to pay the assessed filing fees in time. The court noted that the respondent did not oppose the application and conceded to it at the hearing. On the evidence...
Source-derived case information.
- Citation
- [2007] KEHC 1626 (KLR)
- Parties
- Plaintiff: Abbas Lali Ahmed; Defendant: Luciano Morini; Defendant: Sergio Alvaro Mida
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Case 100 of 2005
- Procedural Posture
- Civil Case / Ruling on Application for Extension of Time to Serve Amended Defence and Counterclaim
- Outcome
- application granted
- Legal Topics
- Extension of Time, Service of Pleadings, Amendment of Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abbas Lali Ahmed
Plaintiff
Luciano Morini
Defendant
Sergio Alvaro Mida
Defendant
Procedural Posture
Civil Case / Ruling on Application for Extension of Time to Serve Amended Defence and Counterclaim
Legal Issues
- 1 Whether the court should extend time for service of the amended defence and amended counterclaim.
- 2 Whether the delay in serving the amended defence and counterclaim was justified.
- 3 Whether any prejudice would be occasioned to the respondents by granting the extension.
Ratio Decidendi
The court found that the delay in serving the amended defence and counterclaim was explained by the absence of the defendants in Italy and the inability to pay the assessed filing fees in time. The court noted that the respondent did not oppose the application and conceded to it at the hearing. On the evidence available and in the absence of any demonstrated prejudice to the respondent, the court exercised its discretion to grant the extension of time sought. The court ordered that the amended defence and counterclaim be served within 7 days of the order.
Court Disposition
application granted
Orders
- Time for service of the amended defence and amended counterclaim is extended; the amended defence and counterclaim shall be served within 7 days of this order.
- Costs of the application shall be in the cause.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MALINDI Civil Case 100 of 2005
ABBAS LALI AHMED……………………PLAINTIFF
VERSUS
LUCIANO MORINI & 3 OTHERS……DEFENDANT
R U L I N G
By an application by way of Notice of Motion dated 25th July 2007, pursuant to the provisions of Order XLIX Rule 5 of the Civil Procedure Rules, the applicant seeks orders:
1) That the honourable Court do extend the time in which to serve the amended defence and amended counterclaim upon the respondents herein.
2) That the costs of this application be in the cause.
The application is based on the grounds:-
a) That when the application to amend the defence and counterclaim was allowed, it was ordered that the same be filed and served within even (7) days from the date of the order.
b) That upon presenting the same for filing, fees was assessed at Kshs. 70,000/=
c) That both the 1st and 2nd defendant/applicants were then away in Italy and it was not possible to pay for the filing fees in time .
d) That the amended defence and amended counterclaim were then filed on the 27th June 2007 but could not be served on the same date it being the last day as ordered.
e) That no prejudice will be occassioned to the respondents if they are served out of time.
The application is predicated upon the annexed affidavit of Sergio Alvaro Mida sworn on the 25th day of July 2007.
The applicant adopted wholly the affidavit in support of the application. It was argued on behalf of the applicant that the application to amend the defence and counterclaim dated 3rd May 2007 was heard and allowed on 20th June 2007. It was ordered that the same be filed and served within 7 days from the date of the order.
That on presenting the amended plaint and counterclaim for filing the court Registry assessed the filing fees at Shs. 70,000/=. At that point in time the second defendant/applicant was way in Italy. The advocate for the applicant was not able to obtain the filing fees until 27th June 2007.
That the amended defence and amended counterclaim have already been filed, however the same cannot be served as time to do so elapsed 7 days after the order of 20th June 2007 hence this application.
The respondent neither filed replying affidavit nor grounds of opposition. At the hearing the respondent conceded this application.
I have on my part analysed the entire application and the relevant law and is convinced that the orders sought in the application are deserved on the evidence available.
Accordingly, I grant the application in terms of prayer 1 and 2. The amended defence and counterclaim shall be served within 7 days of this order.
Dated and delivered at Malindi this 7th day of September 2007.
N.R.O.OMBIJA
JUDGE
Mr.Okuto } for 1st and 2nd defendant.
Mr.Michira for Kalume Katana } for Morini.