[2017] KEELC 2145 (KLR)
The court found that the defendant's Replying Affidavit was filed outside the period granted by the court, even exceeding the period initially requested by the defendant's counsel. The explanation of illness was unsupported by any documentary evidence. The court emphasized the importance of compliance with its...
Source-derived case information.
- Citation
- [2017] KEELC 2145 (KLR)
- Parties
- Plaintiff: Esther Kamathi Mwimbi (Suing as the administratrix of the estate of Romano Mwimbi)-Deceased; Defendant: Zaverio Mithika
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 153 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Expunge Replying Affidavit
- Outcome
- application to expunge replying affidavit allowed
- Legal Topics
- Affidavit Filing Timelines, Court Directions Compliance, Expunging Documents
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Esther Kamathi Mwimbi (Suing as the administratrix of the estate of Romano Mwimbi)-Deceased
Plaintiff
Zaverio Mithika
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Expunge Replying Affidavit
Legal Issues
- 1 Whether the Replying Affidavit filed by the defendant should be expunged for being filed outside the period granted by the court.
- 2 Whether the defendant's explanation for late filing, namely illness, is sufficient without supporting documents.
Ratio Decidendi
The court found that the defendant's Replying Affidavit was filed outside the period granted by the court, even exceeding the period initially requested by the defendant's counsel. The explanation of illness was unsupported by any documentary evidence. The court emphasized the importance of compliance with its directions and, in the absence of a valid justification, ordered the Replying Affidavit expunged from the record pursuant to Section 1A of the Civil Procedure Act, which underscores the need for efficient and timely conduct of proceedings.
Court Disposition
application to expunge replying affidavit allowed
Orders
- The Replying Affidavit of 19.07.17 is expunged from the record.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC CASE NO. 153 OF 2017
ESTHER KAMATHI MWIMBI (Suing as the administratrix
of the estate of ROMANO MWIMBI)-Deceased.........PLAINTIFF
VERSUS
ZAVERIO MITHIKA.....................................................DEFENDANT
R U L I N G
This ruling is in respect of the application made to have the Replying Affidavit of 19. 07. 17 expunged as it was filed outside the period given by the Court on 12. 06. 17. On 12. 06. 17, Mwanzia Advocate had informed the Court that he needed 21 days. The Court gave them 14 days. The Replying Affidavit was hence filed even outside the 21 days period. This averment that defendant was ailing doesn't hold as no Supporting documents have been availed. As such the Replying Affidavit is hereby expunged from the Record (See Section 1A of the Civil Procedure Act) as issue of compliance with Court's directions.
DELIVERED, DATED AND SIGNED AT MERU THIS 19TH DAY OF JULY , 2017
IN THE PRESENCE OF:-
C:A Janet
Carlpeters Mbaabu for the Plaintiff/Applicant
Muia Mwanzia for the Defendant /Respondent
HON. L.N. MBUGUA
ELC JUDGE