[2020] KEELC 3321 (KLR)
The court found that while the defendant's delay in filing the defence was inordinate and without formal application for extension of time, the interests of justice require that parties be afforded an opportunity to be heard. The court emphasized that procedural rules exist to ensure orderly conduct of litigation...
Source-derived case information.
- Citation
- [2020] KEELC 3321 (KLR)
- Parties
- Plaintiff: Julius Masinde; Defendant: Francis Wafula
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 144 of 2017
- Procedural Posture
- Land Case / Ruling on Application to Strike Out Defence
- Outcome
- Application to strike out defence declined; defence deemed properly filed subject to payment of costs.
- Judges
- FM Njoroge
- Legal Topics
- Striking Out of Pleadings, Late Filing of Defence, Sanctions for Delay, Extension of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Masinde
Plaintiff
Francis Wafula
Defendant
Procedural Posture
Land Case / Ruling on Application to Strike Out Defence
Legal Issues
- 1 Whether the defendant's defence and accompanying documents filed out of time should be struck out.
- 2 Whether the court should deem the late-filed defence as properly filed despite procedural irregularity.
- 3 What sanctions, if any, should be imposed for the delay in filing the defence.
Ratio Decidendi
The court found that while the defendant's delay in filing the defence was inordinate and without formal application for extension of time, the interests of justice require that parties be afforded an opportunity to be heard. The court emphasized that procedural rules exist to ensure orderly conduct of litigation and discourage presumptuous disregard for timelines. However, striking out a defence is a drastic remedy and should be exercised sparingly. The court therefore declined to strike out the defence, instead deeming it properly filed and served, but imposed a monetary sanction on the defendant for the delay and inconvenience caused. The court further ordered that failure to pay the...
Court Disposition
Application to strike out defence declined; defence deemed properly filed subject to payment of costs.
Orders
- The application to strike out the defence is declined.
- The defence and other documents filed on 1/4/2019 are deemed properly filed and served.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 144 OF 2017
JULIUS MASINDE...............................................................PLAINTIFF
VERSUS
FRANCIS WAFULA..........................................................DEFENDANT
RULING
1. This court has been invited by the plaintiff’s counsel to strike out the defence and other documents filed alongside the defence on 1/4/2019. It is an application that is long overdue. There is no formal application on the record for leave to file the defence and the other documents, but Mr. Kundu, at the tail end of his submissions in opposition to the application for striking out, made an impassioned plea for the defence and other documents to be deemed as properly filed. Mr. Kundu explained that the delay in filing them was occasioned by the failure on the part of the defendant to furnish the relevant documents within the stipulated time.
2. I have considered the application and the response. Ordinarily pleadings ought to be filed in a sequential and orderly manner, and the Civil Procedure Rules provide for the timelines to be complied with in doing so. The defendant in this case never responded to the summons in good time; thought the suit was filed on 23/8/2017, the defendant had not filed the defence or other documents by 6/4/2018; and the matter was listed for formal proof for 1/8/2018. It never proceeded on that date. It was further scheduled for formal proof on 4/4/2019 but the defendant intercepted the formal proof by lodging an application dated 4/2/2019. At the inter-partes hearing of that application on 18/2/2019, the plaintiff’s counsel Mr. Teti graciously allowed the same by consent and part of the terms thereof were that the defendant would file and serve his defence within 7 days from 18/2/2019. That never happened. instead defence was filed on 1/4/2019, which in Mr. Teti’s mathematical calculus rendered the delay to be about 50 days. This is inordinate delay. This court should not condone delay in the part of a defendant which in turn delays the suit’s finalization. The necessary sequel of allowing Mr. Kundu’s impassioned plea to deem the defence and other documents as properly filed is obvious: there is bound to be more delay in the finalization of this suit as parties await compliance with the necessary steps that follow the filing of the defence, absent a consent to proceed immediately after the defence is, perchance, allowed to remain on the record.
3. I have anxiously considered the conduct of the defendant and his counsel and found it to be quite egregious - there should have been an application for extension of time before this hearing date, but they preferred to live as though rules did not exist or as if the rules never bound them. This presumptuous approach must be discouraged for it occasions this court quite a huge amount of backlog as parties and their counsel galvanize themselves into actions resembling compliance only after the hearing date has been fixed, or on the date of the hearing.
4. Be that as it may, I have considered that at least there is a defence on the record and a court of justice should rarely ignore a party’s defence however irregularly it has been filed. All that this court can state here is that this practice of delaying pleadings and acting as though rules never existed must be met with the appropriate and commensurate sanctions even as the court struggles to afford the offending party a hearing in the matter.
5. In view of the foregoing, I must decline to grant the application for striking out defence made by Mr. Teti and allow Mr. Kundu’s application though oral for orders deeming the defence and other documents as properly filed.
6. I therefore decline the striking out application. I also order that the defence and other documents filed with it on 1/4/2019 are hereby deemed as properly filed and served. For that delay and for occasioning this adjournment the defendant must of necessity pay penance. I therefore order that the defendant shall pay to the plaintiff the sum of Kshs.15,000/= within 7 daysfrom today failure to which the defence filed herein shall stand struck out automatically and the matter shall proceed to formal proof.
7. This matter will be mentioned on 18/3/2020 to fix a fresh hearing date. Leave is granted to the plaintiff to file a further witness statement and further list of documents with a reply to the defence if need be within 14 days of today.
Dated, signedanddeliveredatKitale on this 3rdday ofMarch, 2020.
MWANGI NJOROGE
JUDGE
3/3/2020
Coram:
Before - Mwangi Njoroge, Judge
Court Assistant - Picoty
Mr. Teti for the plaintiff
Mr. Kundu for the defendant
COURT
Ruling read in open court.
MWANGI NJOROGE
JUDGE
3/3/2020