[2014] KEELC 590 (KLR)
The court found that the delay in filing the reinstatement application was only 20 days beyond the court-ordered deadline and was due to an excusable human error by the plaintiff's former advocate. The court held that this delay was not inordinate and that no prejudice would be suffered by the defendants if the...
Source-derived case information.
- Citation
- [2014] KEELC 590 (KLR)
- Parties
- Plaintiff: Donald Kawinzi Muteti; Defendant: Maliya Mungu Mutei; Defendant: Katelembo Athiani Mavuti Farming and Ranching Society Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 1456 of 2001
- Procedural Posture
- Notice of Motion / Ruling on Application for Extension of Time to File Reinstatement Application
- Outcome
- application allowed
- Judges
- MM Gitumbi
- Legal Topics
- Extension of Time, Abatement of Suit, Revival of Suit, Procedural Technicalities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Donald Kawinzi Muteti
Plaintiff
Maliya Mungu Mutei
Defendant
Katelembo Athiani Mavuti Farming and Ranching Society Limited
Defendant
Procedural Posture
Notice of Motion / Ruling on Application for Extension of Time to File Reinstatement Application
Legal Issues
- 1 Whether the plaintiff should be granted an extension of time to file the reinstatement application after the lapse of the court-ordered deadline.
- 2 Whether the delay in filing the reinstatement application was excusable.
- 3 Whether the defendants would suffer prejudice if the extension of time is granted.
Ratio Decidendi
The court found that the delay in filing the reinstatement application was only 20 days beyond the court-ordered deadline and was due to an excusable human error by the plaintiff's former advocate. The court held that this delay was not inordinate and that no prejudice would be suffered by the defendants if the extension was granted. The court emphasized that strict adherence to procedural timelines should not override the need to determine matters on their merits, as required by Article 159(2)(d) of the Constitution of Kenya, 2010. Consequently, the court exercised its discretion to allow the extension of time, deeming the reinstatement application as duly filed.
Court Disposition
application allowed
Orders
- The plaintiff is granted an extension of time; the reinstatement application is deemed duly filed.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
ENVIRONMENT AND LAND DIVISION
ELC. CASE NO. 1456 OF 2001
DONALD KAWINZIMUTETI…………..…..…..…………..PLAINTIFF
VERSUS
MALIYA MUNGU MUTEI…….................................... 1ST DEFENDANT
KATELEMBO ATHIANI MAVUTI FARMING
AND RANCHING SOCIETY LIMITED………...…....2ND DEFENDANT
RULING
Coming up before me for determination is the Notice of Motion dated 15th May 2013 in which the Plaintiff seeks for an extension of time within which the Application dated 12th February 2013 (hereinafter referred to as the “Reinstatement Application”) was to be filed so as to deem it filed within time and that costs of this Application abide in the cause.
The Application is premised on the grounds appearing on the face of it together with the Supporting Affidavit of the Plaintiff, Donald Kawinzi Muteti, sworn on 16th May 2013 in which he averred that the 1st Defendant died on 9th March, 2007 and that the proposed substitute to the 1st Defendant did not apply for Letters of Administration ad litem until 7th May 2011. He further averred that Letters of Administration ad litem were obtained on 25th January 2012. He further averred that his former Advocate was ordered by the court (Mutungi, J.) to file an application within 14 days from 17th January 2013 but he inadvertently filed it 20 days outside that timeline on 20th February 2013. He stated further that this is an ordinary human error which is excusable and should not be penalized. He further averred that no prejudice would be occasioned upon the proposed 1st Defendant and the 2nd Defendant by the extension of time as requested by the Plaintiff.
The Application is opposed. The 1st Defendant filed his Grounds of Opposition dated 10th June 2013 in which he stated that the Plaintiff had not given a good enough reason why he failed to abide by the court’s order. He further stated that a revival of the suit against the 1st Defendant would not serve any useful purpose because the suit does not disclose any cause of action against the 1st Defendant. The Application was further opposed by the 2nd Defendant who filed his Grounds of Opposition dated 20th June 2013 in which he stated that the suit need not be revived since there is no suit against the 1st and 2nd Defendants and it would be a waste of time to revive a dead suit.
I confirm that on 17th January 2013, Mutungi, J. made the following directions:
“In the circumstances of this suit since a legal representative to the 1st Defendant has been appointed, … the Plaintiff should make the appropriate application to revive the suit against the 1st Defendant against whom the suit has abated by operation of the law. In the court’s view, the Plaintiff was prevented by sufficient cause from proceeding with the suit. The Plaintiff is therefore granted leave to file the appropriate application within the next 14 days of the date hereof to revive the abated suit as against the 1st Defendant.”
Going by those directions, the Plaintiff had until 31st January 2013 to file the Reinstatement Application. However, he did so on 20th February 2013, which was 20 days later. The issue to determine is whether the Plaintiff should be granted an extension of time so that the Reinstatement Application may be deemed as duly filed. The main point of opposition to this being allowed from both Defendants is that the Plaintiff had no good reason for failing to file the Reinstatement Application within the time ordered by the court and for that reason he should not be accommodated by this court granting his request. To my mind, I am not entirely satisfied with the opposition to the Plaintiff being granted his request. This is bearing in mind that the Reinstatement Application was filed only 20 days after the time allowed by the court. This is not undue delay. I also cannot see any prejudice that either of the Defendants will suffer by my allowing this Application. Further, seeking to adhere strictly to the timeline given by the court and thereby denying the consideration of the Reinstatement Application on its own merits appears to me to having undue regard to technicalities which is prohibited under Article 159(2)(d) of the Constitution of Kenya, 2010. With that in mind, I hereby allow this Application. Costs shall be in the cause.
It is so ordered.
SIGNED AND DELIVERED IN NAIROBI THIS 11TH DAY OF JULY 2014.
MARY M. GITUMBI
JUDGE