[2014] KEHC 7023 (KLR)
Both parties failed to serve their respective pleadings within the prescribed time, but subsequently did so. The court found that excusing both parties and enlarging the time for service would regularize the suit and not prejudice either party. The court exercised its discretion under Section 95 of the Civil...
Source-derived case information.
- Citation
- [2014] KEHC 7023 (KLR)
- Parties
- Plaintiff: Josephine Monyangi Onchari; Defendant: Kenya Power and Lighting Co. Ltd.
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 405 of 2012
- Procedural Posture
- Civil Case / Ruling on Interlocutory Applications
- Outcome
- Defendant's application for extension of time granted; plaintiff's application compromised with no orders as to costs.
- Judges
- DA Onyancha
- Legal Topics
- Extension of Time, Service of Pleadings, Striking Out of Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Josephine Monyangi Onchari
Plaintiff
Kenya Power and Lighting Co. Ltd.
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Applications
Legal Issues
- 1 Whether the defendant's defence should be struck out for failure to serve within the prescribed time.
- 2 Whether the defendant should be granted extension of time to serve its defence.
- 3 Whether the plaintiff's application should be struck out for failure to serve within the prescribed time.
Ratio Decidendi
Both parties failed to serve their respective pleadings within the prescribed time, but subsequently did so. The court found that excusing both parties and enlarging the time for service would regularize the suit and not prejudice either party. The court exercised its discretion under Section 95 of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules to grant the defendant's application for extension of time to serve its defence. The court emphasized the importance of allowing parties to fully agitate their cases and avoiding unnecessary impediments to the determination of the suit, especially where issues of public interest are involved. Consequently, the defendant...
Court Disposition
Defendant's application for extension of time granted; plaintiff's application compromised with no orders as to costs.
Orders
- The Defendant’s application for extension of time is hereby granted.
- The Defendant shall serve its defence within 10 days.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NUMBER 405 OF 2012
JOSEPHINE MONYANGI ONCHARI. ................................... PLAINTIFF
VERSUS
KENYA POWER AND LIGHTING CO. LTD. ......................... DEFENDANT
R U L I N G
There are two applications before the court. The first one is dated the 7th November, 2011 by the Plaintiff and seeks the striking out of the Defendant’s defence and entering judgment in favour of the plaintiff on the basis that the Defendant filed the defence but failed to serve it within the prescribed 7 days and thereafter for a year.
The second application is dated 1st February, 2012 and was filed by the Defendant. It sought mainly for extension of time to serve the unserved defence. It, however also sought in equal voice, to strike out the first application by the Plaintiff on the basis that the Plaintiff himself, had failed to serve the said application within the prescribed 7 days.
I have carefully considered the applications which I have perused. I have no doubt in my mind that both parties in their own way and for their own reasons, committed a similar offence of failing to serve pleadings on each other within the period prescribed by the rules. It is also clear to me that if both are excused and are given time to serve the unserved proceedings, the suit and the pleadings and processes related thereto, will be rectified and regularized. Thereafter the parties can move on with the case. This will be so notwithstanding the fact that the court indeed has power to strike out the unserved pleadings under order 10 rule 3, a power which should be exercised only with discretion.
On the other hand, the court under Section 95 of the Civil Procedure Act, and Order 50 Rule 6 of the Civil Procedure Rules has power and discretion to enlarge time for the doing of any act prescribed or allowed under the Civil Procedure Act and rules even if such time has expired.
It is on record that although either party had failed to serve their relevant pleadings or process in time, they have later done so and each party is conversant of those pleadings or processes already filed. It is also clear in my mind that enlarging the relevant time would, as already stated, regularize the suit and will indeed not prejudice either party.
It is trite that the purpose of court is to grant parties maximum access to agitate their cases. That is to say, the court will strive to save a suit and allow a fair and just and final determination of the same. The court will avoid to make any order that would unnecessarily impede proper agitation of the case.
In passing also and not least, the suit appears to carry issues that are of public interest and which need to be freely and fairly investigated and determined to their finality.
The end result therefore shall be that this court will allow the Defendant’s application dated 1st February, 2012 in the following orders: -
ORDERS
The Defendant’s application for extension of time is hereby granted.
The Defendant shall serve its defence within 10 days.
The Plaintiff’s application dated 1st February, 2012 shall stand compromised with no orders in respect thereof.
The costs shall be in the cause.
Dated and delivered in Nairobi this 20th day of February, 2014.
.........................................................
D A ONYANCHA
JUDGE