[2022] KEHC 15044 (KLR)

Crop Health Technologies v Rubio & 3 others (Civil Case 122 of 2020) [2022] KEHC 15044 (KLR) (Civ) (8 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15044 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Civil

Civil Case 122 of 2020

JN Mulwa, J

November 8, 2022

Between

Crop Health Technologies

Plaintiff

and

Vincent Rubio

1st Defendant

Reuben Williams

2nd Defendant

Agritechno East Africa Ltd

3rd Defendant

Agritechno Fertiliantess

4th Defendant

Ruling

1. This ruling is in respect of the plaintiff’s application dated March 30, 2022. It is brought under provisions of order 51 rule 1, order 10 rule 3 and order 2 rule 15(1) of the Civil Procedure Rules (CPR).The applicant seeks an order to strike out the defendants’ defence dated March 4, 2022 for being filed out of time, and without leave of court. It is further sought that upon the above order being granted, the court do enter judgment in default against the defendants together with costs and interest.

2. The application is based on grounds that the defence was filed on the March 4, 2022 without leave of court, and upon the supporting affidavit sworn on the March 30, 2022 by one Phillip Thande, a director of the plaintiff, who avers that the summons to enter appearance together with the plaint were served upon the defendant on the April 26, 2021.

3. The applicant cites two prior applications brought by the respondents/defendants seeking that the suit be marked as abated. It is dated March 13, 2021 , and another datedJuly 28, 2021 whereof the defendants sought an order that the suit be struck out as it discloses no reasonable cause of action. On the two applications, the court (Chietebwe J) pronounced itself that the two applications lacked merit and dismissed them on the November 17, 2021.

4. In opposing the instant application, the respondents filed a replying affidavit sworn by the 2nd defendant on the May 10, 2022 citing the ruling of the Hon Chitebwe J on the November 17, 2021, that since then, the parties engaged in elaborate arbitration proceedings before the International Chamber of Commerce, emanating from similar facts as those in this suit.

5. It is further deposed that failure to file the defence was inadvertent and unintentional on part of the law firm representing the defendants (Wandabwa Advocates), and workload to meet deadlines set out by the arbitrator in the suits; and realized that it had not filed the defence in the instant case, which it did, albeit out of time on the March 4, 2022 and being a mistake, prays that the mistake ought not be visited on the defendants, and that as at the said date, no action had been taken by the plaintiffs.

6. In the circumstances, the defendants have invoked the court to review the reasons stated for the failures and admit the already filed statement of defence as it is stated to have triable issues.

7. The parties were directed to file their submissions on the application. The court record shows that the plaintiff’s/ applicant’s submissions dated May 26, 2022 were filed.

8. I have considered the submissions, the affidavits and the relevant statutes and case law. The court notes that there is a defence filed on the March 4, 2022 by the defendants though filed out of time and without leave of court. Should the court then admit the said defence, having been filed about 1 year, five months after the service of summons? It is not denied by the defendants that they were not served with the summons and plaint in the suit.

9. The applicant admits that the arbitration proceedings which apparently took the defendants time and concentration on this matter concerned these proceedings, but again state that the defendants should have sought leave of court to file the defence out of time, and that despite its submissions to that effect, no application has been filed to urge for leave to have the defence admitted as filed.

10. Order 7 rule 1 Civil Procedure Rules provides that a defendant ought to file an appearance and a statement of defence within 14 days upon service of summons to enter appearance; and by order 10 rule 3 CPR, that unless by a court order on its own motion or by application by the plaintiff, the defence may be struck out and the court may also proceed to make such orders as it may deem fit in the circumstances.

11. The court record is clear that the defendants have not sought leave to file a defence out of time despite having been served with the present application and having responded to the same. It cannot be said that the defendants’ advocates are not aware of these legal provisions.

12. In the case, Chairman, Secretary and Treasurer, School Management Committee of Sir Ali Bin Salim Primary School and another v Francis Bahati Diwani & 2 others [2014] eKLR, the court rendered thus;“In my view an omission to fully comply with a provision of the rules is an irregularity which except in very clear cases, may be cured. Striking out of a pleading, especially where rules do not expressly provide so, which has been filed out of time is an extreme measure which is resulted to in the clearest of cases where the court, in appropriate cases, and upon such terms as the justice of the case may require to enlarge time where a limited time has been fixed for doing any act or taking any proceedings under the rules.”

13. Order 10 rule 3 provides for striking out of an unserved defence, not a defence filed out of time. The provision is also not mandatory. It provides “… the court may on its own motion or upon application….”This calls for the court’s exercise of its discretion, upon considering the reasons for the delay.

14. The Court of Appeal in Nicholas Kiptoo Arap Korir v IEBC and Others [2013] eKLR rendered that:“Deviations from and lapses in form and procedures which do not go to the jurisdiction of the court, or to the root of the dispute or which do not at all occasion prejudice or miscarriage of justice to the opposite party ought not be elevated to the level of a criminal offence attracting such heavy punishment of the offending party, who may in many cases be innocent since the rules of procedure are complex and technical. Instead, in such instances the court should rise to its highest calling to do justice by sparing the parties the draconian approach of striking out pleadings. It is globally established that where a procedural infraction causes no injustice by way of injurious prejudice to a person, such infraction should not have an invalidating effect. Justice must not be sacrificed on the altar of strict adherence to provisions of procedural law which at times create hardship and unfairness.”

15. The above holding is in recognition of the constitutional imperatives stated at article 159 (2)(d) that mandates courts to administer substantive justice without undue regard to procedural technicalities. See also Bebadis Company Limited & 2 others v Sylvia Wamboi Karanja & another [2021] eKLR. The applicant cited the case Habo Agencies Limited v Wilfred Odhiambo Musingo [2015] eKLR.

16. To advance the holding in numerous court decisions that mistakes of counsel should not be visited upon a party, and that when an advocate as agent is vested with authority to perform some duties and does not perform, such principal should bear the consequences.

17. In the instant case, the delay to file the defence in time is clearly inordinate, being over one year. The defendants on their part are not entirely blameless. They have failed in their duty to constantly follow up their case upon instructing the advocates for updates. If they had done so, the advocates would have “remembered” that they had not filed the defence and would have moved earlier, then later, so that they could mitigate their failure against their advocates failures. To that extent then, both the defendants and their advocates must bear the cost of prejudice the delay has caused to the plaintiff by way of costs, as the court may deem fit to grant.

18. The court’s discretion has no limits save that it has to be exercised judiciously. The main concern of the court is to do justice to the parties in light of the circumstances of the case, including its nature, being minded that to deny a party from being heard should be the last resort by the court.

19. The impugned statement of defence was filed out of time, without leave of court. The court will not, and has been pronounced in numerous decisions that, it will not sanitize an illegality in the filing of a pleading out of time, then asking the court to deem it as properly filed, or asking for it to be admitted as is the case in Charles Karanja Kuru v Charles Githinji Muigwa [2017] eKLR, Martha Wambui v Irene Wanjiru Mwangi [2015] eKLR and Stecol Corporation Ltd v Susan Awuor Mudemb [2021] eKLR.

20. This court will follow suit, there be no exceptional circumstances to persuade me to depart from the above. I shall therefore not allow or admit the defence dated March 4, 2022 to remain on record, and order/direct;1. That the defendants shall file and serve a statement of defence within 10 days of this ruling.2. That the defendants shall pay throw away costs to the plaintiff assessed at Kshs 50,000/= within 30 days of this ruling.3. That in default of (1) and (2) above within the stated period, these orders shall lapse automatically, and the plaintiff shall be at liberty to apply.4. The costs of this application shall be borne by the defendants.

5. This court notes that this suit was filed in the Commercial and Tax Division of the High Court. I therefore direct that, upon the orders stated above being complied with by the defendants, the case be transferred for hearing and determination to the Commercial and Tax Division.Orders accordingly.

DATED, DELIVERED AND SIGNED IN NAIROBI THIS 8TH DAY OF NOVEMBER, 2022J N MULWAJUDGE