[2011] KEHC 4322 (KLR)
The court found that the delay in filing the defence was occasioned by confusion over legal representation, as the defendant's insurers had instructed a different firm of advocates who filed a notice of change of advocates before the defendant's chosen advocates filed the statement of defence. Although the defence...
Source-derived case information.
- Citation
- [2011] KEHC 4322 (KLR)
- Parties
- Plaintiff: Joseph Gitahi Ndung'u; Defendant: Mary Wairimu (T/a Wairagu & Wairagu Advocates)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 395 of 2010
- Procedural Posture
- Civil Case / Ruling on Application to Enlarge Time to File Defence
- Outcome
- Application allowed; time enlarged for defendant to file defence.
- Judges
- DW Mbuteti
- Legal Topics
- Enlargement of Time, Filing of Defence, Procedural Irregularities, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Gitahi Ndung'u
Plaintiff
Mary Wairimu (T/a Wairagu & Wairagu Advocates)
Defendant
Procedural Posture
Civil Case / Ruling on Application to Enlarge Time to File Defence
Legal Issues
- 1 Whether the court should enlarge time for the defendant to file a defence after the statutory period had lapsed.
- 2 Whether the defence filed on 26th April, 2011 was valid given the advocate's status on record.
- 3 Whether the delay in filing defence was excusable in the circumstances.
Ratio Decidendi
The court found that the delay in filing the defence was occasioned by confusion over legal representation, as the defendant's insurers had instructed a different firm of advocates who filed a notice of change of advocates before the defendant's chosen advocates filed the statement of defence. Although the defence was filed on 26th April, 2011, it was invalid as it was filed by advocates not properly on record at the material time. The application to enlarge time was filed promptly once the issue was discovered. The court held that, in line with Article 159(2)(d) of the Constitution and the overriding objectives of the Civil Procedure Act, justice should be administered without undue...
Court Disposition
Application allowed; time enlarged for defendant to file defence.
Orders
- The defendant shall file and serve her statement of defence within ten (10) days of delivery of this ruling.
- Costs of the application awarded to the plaintiff in any event.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
CIVIL CASE NO. 395 OF 2010
JOSEPH GITAHI NDUNG’U............................................ PLAINTIFF
V E R S U S
MARY WAIRIMU
(T/a WAIRAGU & WAIRAGU
ADVOCATES)................................................................DEFENDANTS
R U L I N G
This is an application by the Defendant (notice of motion dated 16/06/2011) for the main order that time be enlarged to file defence. The application is made under Order 50, rule 6 of the Civil Procedure Rules.
There are two supporting affidavits. The first is sworn by the Defendant while the second is sworn by one MOSES CHEGE KIBATHI, the Defendant’s advocate. There are various documents annexed to both affidavits.
The grounds for the application as set out on the face thereof and emerging from the supporting affidavits are:-
1. That delay in filing defence was caused by the fact that the Defendant’s insurers had instructed a different firm of advocates who had filed notice of change of advocates before the advocates appointed by the Defendant filed the statement of defence, thus causing confusion in representation.
2. That in any event a statement of defence was filed on 26th April, 2011 but that the same is missing from the court file.
3. That the intended defence raises triable issues, particularly in regard to competency of the suit and jurisdiction of the court to hear it.
4. That in the interests of proportionality of justice the Defendant should be allowed to defend the suit.
The Plaintiff has opposed the application as set out in the two replying affidavits filed on 28th June, 2011, one in respect to each supporting affidavit. The grounds of opposition emerging therefrom are:-
1. That summons to enter appearance was duly served upon the Defendant’s firm, Wairagu & Wairagu, Advocates.
2. That the defence filed on 26th April, 2011 was invalid as it
was filed by an advocate then not properly on record.
3. That the intended defence raises no triable issues.
I have considered the submissions of the learned counsel for the Defendant and the one case cited. I have also considered the submissions of the Plaintiff who appeared in person.
The court has power, under Order 50, rule 6 of the Rules to enlarge time for doing any act or taking any proceedings fixed under the Rules, or by summary notice, or by order of the court. Such enlargement may be upon such terms (if any) as the justice of the case may require. The enlargement may be ordered notwithstanding that application for the same is not made until after expiration of the time appointed or allowed.
Time for filing defence is limited by Order 7, rule 1 of the Rules. Unless some other or further order is made by the court, defence shall be filed within fourteen (14) days after entry of appearance.
In the present case the Defendant entered appearance on 11th April, 2011. So, defence ought to have been filed on or before 25th April, 2011 (if it was a working day). 25th April, 2011 was not a working day; it was a public holiday (Easter Monday). The next working day was 26th April, 2011.
Indeed a statement of defence was filed on 26th April, 2011. A copy of the same is exhibited in the 1st supporting affidavit. The copy exhibited bears the clear date-rubber-stamp of the court.
But as it happened, the advocates who filed the defence (Wairagu & Wairagu), duly instructed by the Defendant, were at that moment not on record for the Defendant because the Defendant’s insurers had instructed another firm of advocates (Mohammed Muigai, Advocates) to take over the matter, and those new advocates had filed a notice of change of advocates. The notice of change had at the material time not been served upon Wairagu & Wairagu. The insurers subsequently withdrew instructions from the new advocates and Wairagu & Wairagu resumed conduct of the defence.
So, were it not for this hitch, there would have been no delay in filing defence. But the defence filed on 26th April, 2011 having been filed by advocates then not on record, the same was invalid. That is why application has been filed for leave to file a fresh statement of defence.
The present application was filed on 17th June, 2011. I am satisfied this was as soon as the hitch came to the notice of Wairagu & Wairagu, and the need to apply became apparent. There was no delay in applying.
With the advent of Article 159 (2) (d) of the new Constitution, andsections 1Aand1B of the Civil Procedure Act, Cap 21,the courts should now be preoccupied more with doing expeditious, proportionate, affordable and substantial justice to litigants, rather than adjudicating over procedural and technical issues.
I therefore have no hesitation in allowing this application. The Defendant shall file and serve her statement of defence within ten (10) days of delivery of this ruling. I will award costs of the application to the Plaintiff in any event.
Those shall be the orders of the court.
DATED AND SIGNED AT NAIROBI THIS 3RD DAY OF AUGUST, 2011.
H.P.G. WAWERU
JUDGE
DELIVERED THIS 5TH DAY OF AUGUST 2011