[2012] KEHC 1706 (KLR)
The court held that, in line with Article 159(2)(d) of the Constitution, it should not disregard pleadings and affidavits filed before hearing merely on the basis of procedural technicalities. The replying affidavit filed by the defendant, though out of time, was admitted as properly on record. However, since the...
Source-derived case information.
- Citation
- [2012] KEHC 1706 (KLR)
- Parties
- Plaintiff: Joyce Mukulu Kilonzo; Defendant: Bernard Kilonzo Katiku
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Case 460 of 1998
- Procedural Posture
- Civil Case / Interlocutory Ruling on Admissibility of Affidavit and Costs
- Outcome
- Affidavit admitted; costs awarded to plaintiff.
- Judges
- GMA Dulu
- Legal Topics
- Affidavit Filing, Extension of Time, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joyce Mukulu Kilonzo
Plaintiff
Bernard Kilonzo Katiku
Defendant
Procedural Posture
Civil Case / Interlocutory Ruling on Admissibility of Affidavit and Costs
Legal Issues
- 1 Whether the replying affidavit filed by the defendant out of time should be admitted on record.
- 2 Whether the plaintiff is entitled to throw away costs due to the late filing of the affidavit.
Ratio Decidendi
The court held that, in line with Article 159(2)(d) of the Constitution, it should not disregard pleadings and affidavits filed before hearing merely on the basis of procedural technicalities. The replying affidavit filed by the defendant, though out of time, was admitted as properly on record. However, since the late filing necessitated the plaintiff's application for directions, the defendant was ordered to pay throw away costs to the plaintiff. The court balanced the need for substantive justice with the need to compensate the plaintiff for unnecessary costs incurred due to the defendant's delay.
Court Disposition
Affidavit admitted; costs awarded to plaintiff.
Orders
- The affidavit filed by M/s Nzei & Company Advocates on 5th July 2012 is deemed as properly on record.
- The defendant will pay the plaintiff throw away costs of the application for directions filed by M/s Andrew Makundi & Company Advocates on 4th July 2012, assessed at Kshs.3,000/=. Same to be paid within ten (10) days from today.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
High Court at Machakos
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JOYCE MUKULU KILONZO ……..…………………..……………………….… PLAINTIFF
VERSUS
BERNARD KILONZO KATIKU ………………….………………..…………. DEFENDANT
R U L I N G
A replying affidavit herein was filed outside the time given by the court by counsel for the defendant Nzei & Company Advocates. It was filed on 5th July 2012. A day before then, a Summons for Directions had been filed by M/s Andrew Makundi & Company Advocates on 4th July 2012. Andrew Makundi & Company Advocates were entitled to file the application for directions if the replying affidavit filed by M/s Nzei & Company Advocates was not filed within the time allowed by the court. Mr Makundi, learned counsel has argued that the replying affidavit filed on 5th July 2012, is not properly on record and should be ignored. Mrs Nzei states that the court can allow the affidavit to stand on record.
This court cannot ignore pleadings and affidavits filed before hearing. Under Article 159 (2) (d) of the Constitution, the court is required to administer justice without undue regard to technicalities. I will allow the affidavit to stand on record. However, that means that the effort of Mr Makundi to file an application for directions has been a waste. A fresh application for directions has to be filed. I will therefore allow the affidavit filed on 5/7/12 to be property on record, but the defendant will pay throw away costs of the application for directions.
I order as follows:-
1. The affidavit filed by M/s Nzei & Company Advocates on 5th July 2012 is deemed as properly on record.
2. The defendant will pay the plaintiff throw away costs of the application for directions filed by M/s Andrew Makundi & Company Advocates on 4th July 2012, which costs I assess at Kshs.3,000/=. Same to be paid within ten (10) days from today.
Dated and delivered this 5thday ofOctober 2012.
………………………………………
George Dulu
Judge
In the presence of:
Nyalo – Court clerk
Ms Ngatia holding brief for Mrs Nzei for Plaintiff
Mr Kimeu holding brief for Mr Makundi for Defendant