[2017] KEELC 2626 (KLR)
The court found that the failure to file the Defence in time was due to the inadvertent mistake of the 2nd Defendant's advocate. The Plaintiff had not taken steps to set the matter down for pre-trial directions or hearing, and the matter had not proceeded for hearing. Therefore, there was no demonstrated prejudice...
Source-derived case information.
- Citation
- [2017] KEELC 2626 (KLR)
- Parties
- Plaintiff: Benjamin Mutuku Mutwa; Defendant: Bernard Maitha Nthenge; Defendant: Francis Muisyo Maitha
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 76 of 2015
- Procedural Posture
- Civil Suit / Ruling on Application for Leave to File Defence Out of Time
- Outcome
- Application allowed.
- Judges
- OA Angote
- Legal Topics
- Leave to File Defence Out of Time, Inadvertent Mistake by Advocate, Prejudice to Opposing Party, Service of Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benjamin Mutuku Mutwa
Plaintiff
Bernard Maitha Nthenge
Defendant
Francis Muisyo Maitha
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Leave to File Defence Out of Time
Legal Issues
- 1 Whether the 2nd Defendant should be granted leave to file a Defence out of time.
- 2 Whether the Plaintiff will suffer prejudice if leave is granted.
Ratio Decidendi
The court found that the failure to file the Defence in time was due to the inadvertent mistake of the 2nd Defendant's advocate. The Plaintiff had not taken steps to set the matter down for pre-trial directions or hearing, and the matter had not proceeded for hearing. Therefore, there was no demonstrated prejudice to the Plaintiff if the Defence was allowed to be filed out of time. In the interests of justice and fair hearing, the court exercised its discretion to grant the 2nd Defendant leave to file and serve his Defence within fourteen days from the date of the ruling. Each party was ordered to bear their own costs.
Court Disposition
Application allowed.
Orders
- The 2nd Defendant is allowed to file and serve his Defence within fourteen (14) days from the date of this Ruling.
- Each party to bear his own costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. CASE NO. 76 OF 2015
BENJAMIN MUTUKU MUTWA ....................................PLAINTIFF
VERSUS
BERNARD MAITHA NTHENGE ..........................1ST DEFENDANT
FRANCIS MUISYO MAITHA ..............................2ND DEFENDANT
RULING
1. In the Application dated 28th July, 2016, the 2nd Defendant is seeking for the following orders:
a.That this Honourable Court be pleased to grant the 2nd Defendant/Applicant leave to file Defence out of time.
b.That the draft statement of Defence annexed hereto be deemed as duly filed and served upon payment of the requisite fees.
c.That the costs of this Application be in the cause.
2. The Application is based on the grounds that the 2nd Defendant entered appearance on 8th April, 2015; that the 2nd Defendant’s advocate inadvertedly omitted to file the Defence in time and that the 2nd Defendant has a good Defence.
3. In response, the Plaintiff deponed that he does not understand why the 2nd Defendant, who is the son of the 1st Defendant, still insists he owns the suit land.
4. The advocates filed brief submissions and authorities which I have considered.
5. The record shows that after being served with Summons to Enter Appearance, the 2nd Defendant, through his advocate, entered appearance on 8th April, 2015.
6. However, it has been deponed that a Defence was not filed due to the Defendants’ advocate’s inadvertent mistake.
7. I have gone through the file and I have noted that since the matter was filed, the Plaintiff has never fixed it for pre-trial directions or for hearing.
8. Indeed, the matter has never proceeded for hearing. In the circumstances, I do not see the prejudice that the Plaintiff will suffer if the 2nd Defendant is allowed to file the proposed Defence out of time.
9. Consequently, I allow the 2nd Defendant’s Application dated 28th July, 2016 in the following terms:
a.The 2nd Defendant be and is hereby allowed to file and serve his Defence within fourteen (14) days from the date of this Ruling.
b.Each party to bear his own costs.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 30TH DAY OF JUNE, 2017.
O.A. ANGOTE
JUDGE