[2015] KEHC 3974 (KLR)
The court found that the defendant had provided a reasonable explanation for the delay in filing the amended defence and counterclaim, namely inadvertence and human error by their advocate. The court exercised its discretion under Order 8 Rule 6 of the Civil Procedure Rules to extend the time for filing the amended...
Source-derived case information.
- Citation
- [2015] KEHC 3974 (KLR)
- Parties
- Plaintiff: Blue Flag General Trading Ltd; Defendant: Green Link Carge Services; Defendant: Green Island Shipping Services Ltd
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 120 of 2009
- Procedural Posture
- Civil Suit / Ruling on Application to Extend Time for Filing Amended Defence and Counterclaim
- Outcome
- application allowed
- Judges
- MM Kasango
- Legal Topics
- Extension of Time, Amendment of Pleadings, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Blue Flag General Trading Ltd
Plaintiff
Green Link Carge Services
Defendant
Green Island Shipping Services Ltd
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Extend Time for Filing Amended Defence and Counterclaim
Legal Issues
- 1 Whether the court should exercise its discretion to extend time for the defendant to file an amended defence and counterclaim out of time.
- 2 Whether the delay in filing the amended defence and counterclaim is excusable under Order 8 Rule 6 of the Civil Procedure Rules.
Ratio Decidendi
The court found that the defendant had provided a reasonable explanation for the delay in filing the amended defence and counterclaim, namely inadvertence and human error by their advocate. The court exercised its discretion under Order 8 Rule 6 of the Civil Procedure Rules to extend the time for filing the amended defence and counterclaim. The court deemed the amended defence and counterclaim filed on 29th May 2015 as properly filed with leave of the court. The absence of opposition from the plaintiff and the excusable nature of the delay were key factors in the court's decision. No order as to costs was made regarding the application.
Court Disposition
application allowed
Orders
- Leave is granted to the defendant to file an amended defence and counterclaim out of time.
- The amended defence and counterclaim filed on 29th May 2015 is deemed as filed with leave of the court.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CIVIL SUIT NO. 120 OF 2009
BLUE FLAG GENERAL TRADING LTD …………..……PLAINTIFF
VERSUS
GREEN LINK CARGE SERVICES ………………….1st DEFENDANT
GREEN ISLAND SHIPPING SERVICES LTD……...2nd DEFENDAN
R U L I N G
1 Before me is the Notice of Motion dated 8th June 201. By that application the defendant seeks an order that the court do extend the time of filing its amended defence and courter claim.
2. The defendant, obtained leave of the court to file amended defence on 21st June 2012 but failed to file it within the 14 days provided under Order 8 Rule 6 of the Civil Procedure Rules. That Rule provides:
“Where the court has made an order giving any party leave to amend, unless the party amends within the period specified or, if no period is specified, within fourteen days, the order shall cease to have effect, without prejudice to the power of the court to extend the period.”
3 Indeed on 21st June 2012 the court did not give a specific period within which the amendment was to be effected. That being so by virtue of the above “Rule the defendant should have filed the amended defence within 14 days of the court order.
4 The following is the reason given in the affidavit in support by counsel of the defence why that amended defence was not filed within the specified period set out in Order 8 Rule 6:
“ That my advocate on record M/s Kadima Esq. has informed me which information I believe to be true that after the leave to amend was granted, the advocate in conduct of the matter inadvertently and purely on human error failed to amend the defence within the 14 day period…. and it was (not) until 29th May 2015 when the same was done.”
5 The plaintiff though served was not represented at the hearing of the application and neither did the plaintiff file any documents in opposition to defendant’s application.
6 Order 8 Rule 6 affords the court discretion to extend the period of filing an amended pleading. The defendant has in my view explained the reason for delay in filing the amended defence. It is due to human error which in my view is excusable.
7 In conclusion therefore leave is granted to the defendant to file an Amended Defence and Counter Claim out of time. In that regard the Amended Defene and Counter Claim filed in court on 29th May 2015 is deemed as though filed with leave of the court. There shall be no orders as to costs in regard to the Notice of Motion dated 8th June 2015.
Dated and delivered at Mombasa this 9th day of July 2015.
MARY KASANGO
JUDGE
9. 7.2015
Coram
Before Justice Mary Kasango
C/assistant – Kavuku
For the Plaintiffs:
For 1st Defendant:
For 2nd Defendant:
Court
Ruling delivered in their presence/absence in open court.
MARY KASANGO
JUDGE