[2018] KEELC 2989 (KLR)
The court found that while the Replying Affidavit was indeed filed in contravention of Order 51 Rule 14(2) of the Civil Procedure Rules, this infraction was a procedural technicality that did not prejudice the plaintiff. The court invoked Article 159(2)(d) of the Constitution and Section 3A of the Civil Procedure...
Source-derived case information.
- Citation
- [2018] KEELC 2989 (KLR)
- Parties
- Plaintiff: M’Chabari Kinoro; Defendant: Isaiah Nkoroi Muriungi; Defendant: Jeremiah Nyaga Muriungi; Defendant: Jacob Gitonga Muriungi; Defendant: Elivase Mutegi Kajieta; Defendant: The District Land Registrar Tharaka South; Defendant: The Honourable Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 210 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Oral Application to Strike Out Replying Affidavit
- Outcome
- application denied
- Judges
- FM Njoroge
- Legal Topics
- Filing of Affidavits, Procedural Technicalities, Order 51 Rule 14, Article 159 Constitution, Section 3a Civil Procedure Act
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
M’Chabari Kinoro
Plaintiff
Isaiah Nkoroi Muriungi
Defendant
Jeremiah Nyaga Muriungi
Defendant
Jacob Gitonga Muriungi
Defendant
Elivase Mutegi Kajieta
Defendant
The District Land Registrar Tharaka South
Defendant
The Honourable Attorney General
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Oral Application to Strike Out Replying Affidavit
Legal Issues
- 1 Whether the Replying Affidavit filed by the defendants on 18th June 2018 should be struck out for being filed out of time contrary to Order 51 Rule 14(2) of the Civil Procedure Rules.
- 2 Whether the procedural infraction can be cured by Article 159(d) of the Constitution and Section 3A of the Civil Procedure Act.
Ratio Decidendi
The court found that while the Replying Affidavit was indeed filed in contravention of Order 51 Rule 14(2) of the Civil Procedure Rules, this infraction was a procedural technicality that did not prejudice the plaintiff. The court invoked Article 159(2)(d) of the Constitution and Section 3A of the Civil Procedure Act to cure the defect, holding that substantive justice should not be sacrificed at the altar of procedural technicalities. Consequently, the oral application to strike out the Replying Affidavit was denied, and the affidavit was deemed properly filed.
Court Disposition
application denied
Orders
- The oral application to strike out the Replying Affidavit filed on 18th June 2018 is denied.
- The Replying Affidavit is deemed to have been properly filed.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC CASE NO. 210 OF 2017
FORMERLY MERU ELC. 246 OF 2016
M’CHABARI KINORO................................................................................PLAINTIFF
VERSUS
ISAIAH NKOROI MURIUNGI.........................................................1ST DEFENDANT
JEREMIAH NYAGA MURIUNGI...................................................2ND DEFENDANT
JACOB GITONGA MURIUNGI......................................................3RD DEFENDANT
ELIVASE MUTEGI KAJIETA.........................................................4TH DEFENDANT
THE DISTRICT LAND REGISTRAR THARAKA SOUTH........5TH DEFENDANT
THE HONOURABLE ATTORNEY GENERAL............................6TH DEFENDANT
RULING
1. On 19. 6.2017, when the court was poised to hear the defendants’ application dated 31st July, 2018, Mr. Murango Mwenda, for the plaintiff, urged the court to strike out and expunge from the court record the Replying Affidavit filed on 18. 6.2018 because it was filed against the express provision of order 51 Rule 14(2) of the Civil Procedure Rules which requires filings to be done three clear days before the date of hearing.
2. Mr. Guantai for the plaintiff riposted that this was a procedural technicality. He admitted that he had filed the apposite replying affidavit on 18th June, 2018 only one day before the intended hearing. He also reminded Mr. Mwenda that he had he himself served him documents in court and said that he had not opposed that service.
3. The rationale for Order 51 Rule 14 (2) is to afford parties enough time to respond to assertions proffered by apposite parties. I deem this infraction a procedural technicality that can easily be cured by invocation of Article 159(d) of the Constitution and Section 3A of the Civil Procedure Act.
4. The apposite oral application is denied and the impugned Replying Affidavit is deemed to have been properly filed.
5. It is so ordered.
Ruling delivered in open court at Chuka this 19th day of June, 2018 in the presence of:
CA: Ndegwa
Guantai for the plaintiff
Murango Mwenda for the defendants
P.M. NJOROGE
JUDGE