[2023] KEELC 21146 (KLR)
The court found that although the defendant failed to file the amended defence and counterclaim within the stipulated time, expunging the pleadings would not advance the readiness of the matter for trial, as the plaintiff had also failed to serve the interested party. The court emphasized that procedural infractions...
Source-derived case information.
- Citation
- [2023] KEELC 21146 (KLR)
- Parties
- Plaintiff: Chumz Limited; Defendant: Mageeta Investments Limited; Interested Party: Adil Khan T/A Motor Atrep
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E362 of 2022
- Procedural Posture
- Environment and Land Case / Ruling on Application to Expunge Amended Defence and Counterclaim
- Outcome
- Directions issued; application to expunge not granted; timelines for compliance set for all parties.
- Judges
- LN Mbugua
- Legal Topics
- Pleadings Amendment, Service of Process, Pretrial Directions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Chumz Limited
Plaintiff
Mageeta Investments Limited
Defendant
Adil Khan T/A Motor Atrep
Interested Party
Procedural Posture
Environment and Land Case / Ruling on Application to Expunge Amended Defence and Counterclaim
Legal Issues
- 1 Whether the amended defence and counterclaim filed by the defendant should be expunged for late filing.
- 2 Whether procedural infractions by both parties affect the readiness of the matter for trial.
- 3 Whether justice requires balancing procedural compliance between the parties.
Ratio Decidendi
The court found that although the defendant failed to file the amended defence and counterclaim within the stipulated time, expunging the pleadings would not advance the readiness of the matter for trial, as the plaintiff had also failed to serve the interested party. The court emphasized that procedural infractions were present on both sides and that justice requires a balanced approach. The court exercised its discretion to grant both parties further time to comply with procedural requirements, setting new deadlines for filing and service of pleadings, and warning that failure to comply would result in the relevant claims or defences not being considered or being dismissed. The court's...
Court Disposition
Directions issued; application to expunge not granted; timelines for compliance set for all parties.
Orders
- The defendant is directed to file and serve their amended pleadings (amended defence and counterclaim) by 9.11.2023, failing which such documents shall not be considered.
- The plaintiff is directed to serve the interested party with all suit papers and today's directions and file an affidavit of service by 2.11.2023, failing which the claim against the interested party shall stand dismissed.
Full Case Text
Judgment text and source record
24 paragraphs
Chumz Limited v Mageeta Investments Limited; Khan t/a Motor Atrep (Interested Party) (Environment & Land Case E362 of 2022) [2023] KEELC 21146 (KLR) (25 October 2023) (Ruling)
Neutral citation: [2023] KEELC 21146 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment & Land Case E362 of 2022
LN Mbugua, J
October 25, 2023
Between
Chumz Limited
Plaintiff
and
Mageeta Investments Limited
Defendant
and
Adil Khan T/A Motor Atrep
Interested Party
Ruling
1. This ruling relates to the application made by the plaintiff that the Amended defence and counterclaim which have been availed at page 103-108 of defendants bundle be expunged. The court has been reffered to its directions given on 18. 9.2023.
2. The explanation given by the defence is that the document became too bulky and could not be lodged in the C.T.S, as the same was being filed with other documents.
3. The directions of 18. 9.2023 were clear that the amended defence was to be filed by 18. 10. 2023. The court has taken into consideration whether the failure to file the pleadings on time is an issue of procedural infraction or whether it is a matter that goes to the root of the dispute.
4. Even if this court was to expunge the said pleadings for good, the matter would still not be ready for trial as the plaintiff has been unable to give particulars of service of summons or suit papers upon the interested party.
5. The ends of justice demand that justice be seen to cut both ways. The procedural infractions on compliance are cutting across the plaintiff and the defendant hence “what is good for the goose is good for the gadder.” I also refer to the case of Alexander Khamisi Mulimi v. I.E.B.C & 2 others [2018] eKLR.
6. I proceed to give directions as follows:1. The defendant is directed to file and serve their amended pleadings (Amended defence and Counter Claim by 9. 11. 2023 failure to which such documents shall not be considered.2. The plaintiff is directed to serve the Interested Party with all the suit papers and today’s directions and file an affidavit of service there of by 2. 11. 2023 otherwise the claim against the said party shall stand as dismissed.3. The interested party is to file and serve their statement of claim by 16. 11. 2023 otherwise the matter shall proceed as an undefended claim against them.4. The plaintiff is to file and serve their reply to amended defence & counter claim and statement of claim of interested party by 30. 11. 2023. 5.Further Pretrial directions on 13. 2.2024
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 25TH DAY OF OCTOBER, 2023 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-Kahama holding brief for Ouma for plaintiffNgina for defendantCourt Assistant: EddelELC CASE NO. E362 OF 2022 (Ruling) Page 2 of 2