[2012] KEHC 5694 (KLR)
The court found that while both parties, through their counsel, had failed to comply with the court's directions regarding the timely filing of submissions, the ultimate prejudice would fall on the parties themselves rather than their advocates. Recognizing this, and invoking its inherent jurisdiction under Article...
Source-derived case information.
- Citation
- [2012] KEHC 5694 (KLR)
- Parties
- Plaintiff: Kenya Breweries Limited; Defendant: Kenya Bus Services Limited; Defendant: Housing Finance Company of Kenya Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 545 of 2001
- Procedural Posture
- Civil Suit / Post Hearing, Directions on Late Submissions and Compliance With Court Orders
- Outcome
- Plaintiff's late submissions deemed as filed with leave of court; 2nd Defendant granted 30 days to file submissions; Plaintiff may respond within 14 days of service.
- Judges
- A Mabeya
- Legal Topics
- Late Filing of Submissions, Court Orders Compliance, Inherent Jurisdiction, Variation of Orders
- 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
Kenya Breweries Limited
Plaintiff
Kenya Bus Services Limited
Defendant
Housing Finance Company of Kenya Limited
Defendant
Procedural Posture
Civil Suit / Post Hearing, Directions on Late Submissions and Compliance With Court Orders
Legal Issues
- 1 Whether the court should accept the plaintiff's submissions filed out of time contrary to court orders.
- 2 Whether the 2nd defendant should be allowed to file submissions after the lapse of the court-imposed deadline.
- 3 Whether the court should invoke its inherent jurisdiction to vary its previous orders regarding timelines for submissions.
Ratio Decidendi
The court found that while both parties, through their counsel, had failed to comply with the court's directions regarding the timely filing of submissions, the ultimate prejudice would fall on the parties themselves rather than their advocates. Recognizing this, and invoking its inherent jurisdiction under Article 159(2) of the Constitution and Section 3A of the Civil Procedure Act, the court determined that the interests of substantive justice required a variation of its previous orders. The court therefore deemed the Plaintiff's late submissions as properly filed with leave of court and granted the 2nd Defendant a further opportunity to file its submissions within 30 days, with the...
Court Disposition
Plaintiff's late submissions deemed as filed with leave of court; 2nd Defendant granted 30 days to file submissions; Plaintiff may respond within 14 days of service.
Orders
- The submissions filed by the Plaintiff on 26th June, 2012 are deemed as filed with leave of court.
- The 2nd Defendant is directed to file and serve its written submissions within 30 days from the date hereof.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH OF KENYA AT NAIROBI
MILIMANI LAW COURTS
Civil Suit 545 of 2001
KENYA BREWERIES LIMITED …………………............…………………… PLAINTIFF
VERSUS
KENYA BUS SERVICES LIMITED…………….……..……………...... 1ST DEFENDANT
HOUSING FINANCE COMPANY OF KENYA LIMITED ……………... 2ND DEFENDANT
R U L I N G
1. Upon the Plaintiff closing its case and the 2nd Defendant indicating that it did not wish to call any evidence on 30th November, 2011, the court gave directions and time frame for filing written submissions as requested by the parties. The court directed that hi-lighting thereof be on 5th March, 2012.
2. Come 5th March, 2012 no submissions had been filed and the parties requested for more time within which to file those submissions. The parties indicated that they would file the submissions and be ready for hi-lighting the same on 14th May, 2012. The court acceeded to the request and fixed the matter for hi-lighting on 14th May, 2012 at 11. 00 a.m. Come the said 14th May, 2012, still no submissions had been filed by either of the parties, prompting the court to give final directions and a timeline for the filing of the said submissions. One of the directions made was that:-
“5. The timelines set above to be strictly adhered to, in default judgment shall be made on the basis of the evidence on record and without considering any of the submissions that may have been filed in contravention of this order.”
3. Under the directions of 14th May, 2012, the Plaintiff was supposed to file and serve its submissions by the 14th of June, 2012. The Plaintiff did not do so until 26th June, 2012. When the matter came up for hi-lighting of the submissions on 25th July, 2012, the 2nd Defendant had not filed its submissions for two (2) reasons. One was that since the Plaintiff had not strictly complied with the order of 14th May, 2012, and that its submissions on record could not be considered and secondly that Mr. Inamdar who had the conduct of the matter had been unwell and had been undergoing treatment outside the country. Mr. Inamdar had returned to the country on 14th July, 2012 and was contemplating applying for the suit to be terminated for the Plaintiff’s continuous non-compliance with court orders. Mr. Ojiambo, for the Plaintiff, submitted that the issue before court was only procedural and that the court should rather be concerned with substantive justice under Article 159 (2) of the Constitution of Kenya, 2010. He cited the case of Trust Bank Ltd –vs- Amalo Co. Ltd (2003) I EA 300 wherein the Court of Appeal held that a party has a right to be heard on documents it has placed before the court.
4. I have considered this matter carefully. I note that the Counsels appearing for the parties herein are some of the senior most and polished counsels in this country. What is most disturbing is that whilst the court has tried to bend backwards to accommodate the parties, the learned counsels are not advancing the cause of justice. None of the counsels applied to set aside the order of 14th May, 2012 or have it varied. This notwithstanding, the filing of the submissions by the Plaintiff on 26th June, 2012 and the failure by the 2nd Defendant to file any submissions at all, was in total disregard and utter contempt of the court’s orders. This is the very least that can be expected by Counsels of the standing of the Counsel appearing for the parties in this matter. To say the least, this does not augur well for their respective clients.
5. Since however, the cases do not belong to the Advocates, and that the persons to be prejudiced by Counsels’ said action are the parties, this court will close its eyes to the Counsels’ said conduct, invoke its inherent jurisdiction under Article 159 (2) of the Constitution and Section 3A of the Civil Procedure Act and vary the orders of 14th May, 2012 accordingly. The submissions filed by the Plaintiff on 26th June, 2012 are hereby deemed as filed with leave of Court. The 2nd Defendant is directed to file and serve its written submissions within 30 days from the date hereof. The Plaintiff is at liberty to respond thereto within 14 days of service. It is so ordered. Dates for hi-lighting be taken in the registry
DATED and delivered at Nairobi this 31st July, 2012.
……………….………………………
A. MABEYA
JUDGE