[2005] KEHC 2318 (KLR)
The court held that while the replying affidavit was filed out of time, mere lateness is not sufficient ground to expunge it from the record. The court emphasized that its primary duty is to do substantial justice between the parties by determining matters on their merits. The replying affidavit, being a substantial...
Source-derived case information.
- Citation
- [2005] KEHC 2318 (KLR)
- Parties
- Plaintiff: Co-operative Bank of Kenya Ltd; Defendant: Clement Thuku Ikigu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 466 of 2003
- Procedural Posture
- Civil Case / Ruling on Application to Expunge Late Replying Affidavit
- Outcome
- Application to expunge replying affidavit dismissed; replying affidavit deemed duly filed; costs awarded to defendant.
- Judges
- DW Mbuteti
- Legal Topics
- Filing Out of Time, Expunging Documents, Court Discretion, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Co-operative Bank of Kenya Ltd
Plaintiff
Clement Thuku Ikigu
Defendant
Procedural Posture
Civil Case / Ruling on Application to Expunge Late Replying Affidavit
Legal Issues
- 1 Whether a replying affidavit filed out of time should be expunged from the court record.
- 2 Whether mere lateness in filing a document is sufficient ground for expunging it.
- 3 Whether the court should exercise discretion to allow the late document in the interest of justice.
Ratio Decidendi
The court held that while the replying affidavit was filed out of time, mere lateness is not sufficient ground to expunge it from the record. The court emphasized that its primary duty is to do substantial justice between the parties by determining matters on their merits. The replying affidavit, being a substantial document already on record, should be deemed duly filed in the interest of justice. However, to balance the interests of both parties, the court awarded costs to the defendant for the justified objection to the late filing.
Court Disposition
Application to expunge replying affidavit dismissed; replying affidavit deemed duly filed; costs awarded to defendant.
Orders
- The replying affidavit filed by the plaintiff is deemed duly filed.
- The defendant is awarded costs assessed at Kshs.5,000.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
COMMERCIAL DIVISION, MILIMANI
CIVIL CASE NO. 466 OF 2003
CO-OPERATIVE BANK OF KENYA LTD……………….PLAINTIFF
VERSUS
CLEMENT THUKU IKIGU………………………………DEFENDANT
R U L I N G
The Defendant herein sought by chamber summons dated 28th September, 2004 the main order that the judgment herein passed ex parte against him be set aside unconditionally. On 24th November, 2004 the court (Kasango, J.) granted the Plaintiff leave to file a replying affidavit within seven days from that date, that is on or before 1st December, 2004. As it happened the replying affidavit was filed on 15th December, 2004, well out of the time extended on 24. 11. 2004.
When the application came up for hearing on 23rd February, 2005 learned counsel for Defendant orally applied for an order to expunge from the court record the replying affidavit and to proceed with the application ex –parte. In his reply, learned counsel for the Plaintiff conceded that indeed the replying affidavit was filed out of time. But in his view mere lateness to file the replying affidavit cannot be a sufficient reason to expunge a document from the record. He sought to rely on the view expressed by Bosire, JA in his judgment in Court of Appeal, Nairobi, Civil Appeal No. 75 of 1998, Central Bank of Kenya –vs- Uhuru Highway Developers Ltds. and Others (Unreported), where he stated,
“………I am …………unable to subscribe to the view expressed by Mr. Rebello that documents filed out of time in response to an application are necessarily invalid and should not be looked at. To my mind the court is obliged to consider them unless for a reason other than mere lateness it considers it undesirable to do so…….”
The judgments of the other two judges of appeal (Kwach and Tunoi) were not made available to me. I am thus unable to tell whether Bosire, JA’s was a dissenting view. In the submission of the Defendant’s learned counsel the view expressed by Bosire, JA is orbiter. This would appear to be so, given the grounds of appeal the Court of Appeal was considering, which have been set out in the judgment of Bosire, JA.
Be that as it may, it should always be the aim of the court to do substantial justice to the parties, if possible by hearing and determining on merit the issues between them placed before it, without allowing itself to be side-tracked by procedural issues. The replying affidavit is a substantial document to which are annexed various documents. It is already on the court record. It was indeed filed out of time. But that is not the same as saying that it should not have been filed at all. It is not an illegal document merely because it was filed late, and in the circumstances of this case it would not do justice to the parties to expunge it from the record.
I hold that the right thing to do is to order that the replying affidavit be deemed to be duly filed. It is so ordered. But this will not be without some penalty to the Plaintiff. The Defendant will be entitled to some costs as his objection to the replying affidavit was not without justifiable cause. I will therefore award to him costs hereby assessed at Kshs.5,000/00. Orders accordingly. A hearing date for the chamber summons dated 28th September, 2004 may be taken in the registry.
DATED AND SIGNED AT NAIROBI THIS 19TH DAY OF APRIL, 2005.
H.P.G. WAWERU
JUDGE
DELIVERED THIS 22ND DAY OF APRIL, 2005.