[2019] KEELC 4812 (KLR)
The court found that the replying affidavit filed on 28.1.2019 was not a mere affidavit but a pleading in response to the originating summons. Filing such a pleading without adherence to the prescribed procedure under the Civil Procedure Rules, and without seeking leave of court for late filing, rendered the...
Source-derived case information.
- Citation
- [2019] KEELC 4812 (KLR)
- Parties
- Plaintiff: Felix Kirimi Mbaya; Defendant: Salome Bahati M’Mutiga
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 20 of 2018
- Procedural Posture
- Environment and Land Case / Ruling on Application to Strike Out Replying Affidavit
- Outcome
- application to strike out replying affidavit allowed
- Legal Topics
- Striking Out Pleadings, Replying Affidavit, Late Filing, Originating Summons Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Felix Kirimi Mbaya
Plaintiff
Salome Bahati M’Mutiga
Defendant
Procedural Posture
Environment and Land Case / Ruling on Application to Strike Out Replying Affidavit
Legal Issues
- 1 Whether the replying affidavit filed on 28.1.2019 should be struck out for violating Order 7 Rule 1 of the Civil Procedure Rules.
- 2 Whether the explanation for late filing by the respondent's counsel is sufficient to regularize the pleading.
Ratio Decidendi
The court found that the replying affidavit filed on 28.1.2019 was not a mere affidavit but a pleading in response to the originating summons. Filing such a pleading without adherence to the prescribed procedure under the Civil Procedure Rules, and without seeking leave of court for late filing, rendered the document irregular. The explanation that counsel was unwell did not excuse the failure to follow proper procedure, as counsel was able to file the affidavit and could have similarly filed an application for extension of time. Consequently, the court struck out the replying affidavit for non-compliance with Order 7 Rule 1 of the Civil Procedure Rules.
Court Disposition
application to strike out replying affidavit allowed
Orders
- The replying affidavit filed on 28.1.2019 is hereby struck out.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MERU
ELC CASE NO. 20 OF 2018
FELIX KIRIMI MBAYA............................................PLAINTIFF
VERSUS
SALOME BAHATI M’MUTIGA...........................DEFENDANT
RULING
1. An application has been made for the striking out of the Replying Affidavit filed on 28. 1.2019 on the basis that it violates the provisions of order 7 rule 1 of the Civil Procedure Rules.
2. The explanation given for late filing of the document is that Mr. Muthomi, counsel for respondent has been unwell.
3. I have perused the record and I find that the replying affidavit is not just any other affidavit. It is actually a pleading as it is a response to the originating summons. It is irregular for pleadings to be filed haphazardly without any due regard to the law. The Respondent’s counsel was sick, but he has still managed to file this Replying Affidavit, which means that he was in a position to take the proper route of filing an appropriate application to file the defence out of time.
4. The replying affidavit filed on 28. 1.2019 is hereby struck out.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS DAY OF 30TH JANUARY, 2019
IN THE PRESENCE OF:-
C/A: Kananu
Wambugu for plaintiff
Odhiambo holding brief for Muthomi for defendant
Plaintiff
HON. LUCY. N. MBUGUA
ELC JUDGE