Ashok K. Shah v Samba Arati [2017] KEHC 9612 (KLR)
- Citation
- [2017] KEHC 9612 (KLR)
- Status
- Judgment
- Jurisdiction
- Kenya
- Court
- High Court
- Panel
- BT Jaden
- Case number
- Civil Case 39 of 2016
- Language
- English
More details
- Court
- High Court
- Panel
- BT Jaden
- Case number
- Civil Case 39 of 2016
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that although the defendant's defence was filed out of time and without leave, the delay was not inordinate, lasting only about two weeks, and was attributed to inadvertence by the defendant's advocate. The court also noted that the process server did not demonstrate that personal service on the defendant was impractical, as required by Order 5 rule 8, since service was effected on the defendant's personal assistant. Given these circumstances, and considering that striking out a defence is a drastic remedy to be used sparingly, the court exercised its discretion to allow the defendant's application for enlargement of time. The court held that the plaintiff could be compensated by costs and that the interests of justice required that the defence be deemed as duly filed and served. Accordingly, the plaintiff's application to strike out the defence was dismissed, and the defendant's application for enlargement of time was allowed.
Court disposition
Plaintiff's application to strike out defence dismissed; defendant's application for enlargement of time allowed.
Orders
- The application dated 21st July, 2016 is dismissed with costs in the cause.
- The application dated 21st October, 2016 is allowed as prayed.
02
Material facts
Parties
Ashok K. Shah
Plaintiff Counsel: Sarah Amondi JummaHon. Samba Arati
Defendant03
Procedural history
Posture
Civil Case / Ruling on Interlocutory Applications Regarding Striking Out Defence and Enlargement of Time to File Defence
04
Questions and positions
Legal issues
- 01
Whether the defendant's statement of defence should be struck out for being filed out of time without leave of court.
- 02
Whether the court should enlarge time for the defendant to file the defence and deem it as duly filed and served.
- 03
Whether the plaintiff can be adequately compensated by costs for the late filing of the defence.
- 04
Whether there was proper service of summons to enter appearance on the defendant.
Party arguments
- Applicant
- The plaintiff argues that the defence was filed out of time and without leave of the court, and therefore should be struck out. The plaintiff further contends that the defendant was properly served through his personal assistant and that the delay in filing the defence is inexcusable. The plaintiff is, however, willing to concede to enlargement of time on condition that the defendant pays Ksh.30,000 as throw away costs.
- Respondent
- The defendant contends that he was not personally served with the summons to enter appearance and only became aware of the suit later, after which he instructed his advocate. The delay in filing the defence was due to inadvertence from the advocate's office and lasted about 14 days. The defendant seeks enlargement of time to file the defence and for the defence already filed to be deemed as duly filed and served.
05
Court’s reasoning
Legal principles
- 01
Order 50 rule 6, Civil Procedure Rules
The court has discretion under Order 50 rule 6 of the Civil Procedure Rules to enlarge time for doing any act or taking any proceedings, upon such terms as the justice of the case may require.
- 02
Pithon Waweru v Thuku Mugria [1983] eKLR; DT Dobie & Co. (Kenya) Ltd v Joseph Mbaria Muchina & another [1980] eKLR
Striking out a case is a drastic remedy to be exercised sparingly and only where there is clear abuse of the court process. A defence on record, even if irregularly filed, should be considered if the plaintiff can be compensated by costs.
- 03
Order 5 rule 8, Civil Procedure Rules
Personal service of summons is required unless it is shown that it is not practical to serve the defendant personally.
06
Ratio, limits and disposition
Ratio decidendi
The court found that although the defendant's defence was filed out of time and without leave, the delay was not inordinate, lasting only about two weeks, and was attributed to inadvertence by the defendant's advocate. The court also noted that the process server did not demonstrate that personal service on the defendant was impractical, as required by Order 5 rule 8, since service was effected on the defendant's personal assistant. Given these circumstances, and considering that striking out a defence is a drastic remedy to be used sparingly, the court exercised its discretion to allow the defendant's application for enlargement of time. The court held that the plaintiff could be compensated by costs and that the interests of justice required that the defence be deemed as duly filed and served. Accordingly, the plaintiff's application to strike out the defence was dismissed, and the defendant's application for enlargement of time was allowed.
Obiter and limits
- A defence on record, however irregularly brought to the notice of the court, ought to be considered.
- Striking out a case is a drastic remedy which ought to be exercised sparingly when it is clear that there is abuse of the process of the court.
- The court should also consider whether the plaintiff can be compensated by way of costs.
Court disposition
Plaintiff's application to strike out defence dismissed; defendant's application for enlargement of time allowed.
- The application dated 21st July, 2016 is dismissed with costs in the cause.
- The application dated 21st October, 2016 is allowed as prayed.
Source and reliance status
High Court
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
High Court
Judgment
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
HIGH COURT CIVIL CASE NO. 39 OF 2016
ASHOK K. SHAH ........................................ PLAINTIFF
VERSUS
HON. SAMBA ARATI ................................. DEFENDANT
RULING
1. This ruling is in respect of two applications. The application dated 21st July, 2016 was filed by the Plaintiff. The application seeks orders that:
“1. That the statement of Defence herein dated 16th June, 2016 and filed in court on 28th June 2016 be struck out.
2. That interlocutory judgment be entered in favour of the Plaintiff against the Defendant and the suit be set down for assessment of damages.
3. That the costs of this application be awarded to the Plaintiff.”
2. The application is predicated on the grounds stated in the application and is supported by the affidavit of Sarah Amondi Jumma, the Plaintiff’s advocate. The Plaintiff’s contention is that the Defence filed herein was filed out of time and without the leave of the court.
3. In the replying affidavit, the Defendant has deponed that he was not served with the Summons to Enter Appearance but nevertheless came to learn of the matter and instructed his advocate to enter appearance. That the advocate delayed in filing the defence by a period of about 14 days.
4. The Defendant filed the application dated 21st October, 2016 which seeks the following orders:
“1. This Honourable Court be pleased to enlarge time for filing of the defence herein by the defendant.
2. The defendants statement of defence dated 16th June 2016, filed on 28th June 2016 and served on 29th June 2016 be deemed as duly filed and served.
3. Cost of this application be in the cause.
4. Any such other and further orders as this Honourable Court may deem just to grant in the circumstances.”
5. The Defendant’s advocate has stated in the affidavit in support that the delay in filing the defence was due to inadvertence from his office. It is further stated that Defendant was not served with the Summons to Enter Appearance and that no judgment has been entered herein.
6. The application is opposed. It is stated in the replying affidavit that the defence was filed after the expiry of the prescribed period and without the leave of the court. It is further stated that the Plaintiff is ready to consider conceding to an application for the enlargement of time within which to file the Defence on condition that Ksh.30,000/= throw away costs are paid by the Defendant.
7. Under Order 50 rule 6 of the Civil Procedure Rules, the court has the power to enlarge the time fixed for doing any act or taking any proceedings under the said Rule provided that such enlargement is made upon such terms as the justice of the case may require. Striking out a case is a drastic remedy which ought to be exercised sparingly when it is clear that there is abuse of the process of the court. A defence on record, however irregularly brought to the notice of the court ought to be considered. The court should also consider whether the Plaintiff can be compensated by way of costs. (See for example Pithon Waweru v thuku Mugria [1983] eKLR and DT Dobie & Co. (Kenya) Ltd v Joseph Mbaria Muchina & another [1980] eKLR)
8. Turning back to the case at hand, it is not in dispute that the Defence was filed late. However, the averment by the Plaintiff that he was not served are given credence by the affidavit of the process server, Christopher Githui sworn on 22nd June, 2016. In the said affidavit, the process server has deponed that he served the summons on one Nyamasege Mogaka who is described as the Defendant’s Personal Assistant. There was no personal service contrary to the provisions of Order 5 rule 8. It was not demonstrated by the process server that it was not practical to serve the Defendant personally.
9. The delay in filing the defence has also been blamed on the inadvertence on the Defendant’s advocate’s office. No details have been given regarding the said inadvertence. However, the delay was for a period of about two weeks. The delay was not inordinate.
10. In the upshot, the application dated 21st July, 2016 is dismissed. Costs in cause.
11. The application dated 21st October, 2016 is allowed as prayed.
Dated, signed and delivered at Nairobi this 16th day of Nov., 2017
B.THURANIRA JADEN
JUDGE
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