[2018] KEELRC 1469 (KLR)
The court found that the delay in filing the respondent's statement of response was excusable, as the respondent needed time to obtain instructions. The court emphasized that the power to strike out pleadings or extend time is discretionary and should be exercised judiciously. In this case, the court was satisfied...
Source-derived case information.
- Citation
- [2018] KEELRC 1469 (KLR)
- Parties
- Applicant: Shadrack Mwendwa Mwinzi; Respondent: Judicial Service Commission
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1311 of 2017
- Procedural Posture
- Cause / Ruling on Application to Strike Out Response for Late Filing
- Outcome
- Application dismissed. Respondent's defence allowed on record.
- Judges
- HS Wasilwa
- Legal Topics
- Late Filing of Response, Court Discretion, Extension of Time, Procedural Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Shadrack Mwendwa Mwinzi
Applicant
Judicial Service Commission
Respondent
Procedural Posture
Cause / Ruling on Application to Strike Out Response for Late Filing
Legal Issues
- 1 Whether the respondent's statement of response should be struck out for being filed out of time.
- 2 Whether the court should exercise its discretion to allow the late response to be on record.
Ratio Decidendi
The court found that the delay in filing the respondent's statement of response was excusable, as the respondent needed time to obtain instructions. The court emphasized that the power to strike out pleadings or extend time is discretionary and should be exercised judiciously. In this case, the court was satisfied that there was good cause for the delay and that the respondent had a substantial defence that warranted consideration on the merits. Accordingly, the court exercised its discretion to allow the late response to be deemed properly on record, ensuring that the matter would be determined on its merits rather than on procedural technicalities.
Court Disposition
Application dismissed. Respondent's defence allowed on record.
Orders
- The respondent's statement of response filed out of time is allowed to be part of the record.
- Costs in the cause.
Full Case Text
Judgment text and source record
27 paragraphs
Mwinzi v Judicial Service Commission (Cause 1311 of 2017) [2018] KEELRC 1469 (KLR) (14 June 2018) (Ruling)
Shadrack Mwendwa Mwinzi v Judicial Service Commission [2018] eKLR
Neutral citation: [2018] KEELRC 1469 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nairobi
Cause 1311 of 2017
HS Wasilwa, J
June 14, 2018
Between
Shadrack Mwendwa Mwinzi
Claimant
and
Judicial Service Commission
Respondent
Ruling
1. The Application before Court is dated 31/1/2018 filed by the Claimant/Applicant herein seeking orders that the Respondents’ Statement of Response dated 15/11/2017 be struck out for being field out of time and that the matter should proceed for hearing on formal proof.
2. The Application is supported by the supporting affidavit of the Applicant who has deponed that this case was filed on 11th July 2017 and he extracted summons to enter appearance which he served upon the Respondents on 17. 7.2017.
3. That the Respondents were expected to enter appearance and file statement of defence within 21 days of service. However the Respondents never filed their Response until 11. 12. 2017.
4. The Applicant avers that this was inordinate delay on the Respondents part in breach of the provisions of the law which is an indication that the Respondent is hell bent on delaying this matter hence this Application.
5. The Respondent opposed this Application. They filed their Replying Affidavit on 5/3/2018 and they aver that the Claimant filed his claim on 10. 7.2017 and not 11. 7.2017 and served upon the Respondents on 17. 7.2017. That they were duly instructed by the Respondents on 7. 9.2017 and filed Memorandum of Appearance on 18. 9.2017 and a response on 11. 12. 2017.
6. They contend that Rule 13(5) of Employment and Labour Relations Court (Procedure) Rules, the Court may on Application by a Party to any proceedings extend or reduce the time within which a responding party may respond to the pleadings.
7. They contend that the delay in filing their Response is excusable as they needed to get instructions on the issue as per their Appendix MM1-1 their dated 8/1/2017 from the Respondent.
8. They aver that they have a substantial response to the Claimants suit which needs this Court to determine and therefore the Application by the Applicant is meant to delay the hearing and determination of this suit on merit.
9. They submit that the delay on the part of the Respondent’s Counsel should not be vested against the Respondents.
10. I have examined the averments and submissions of both parties. I note that the orders sought can be granted at the discretion of the Court if there is good cause. The failure to file defence is excusable. In the circumstances, I exercise my discretion and allow defence filed out of time to be part of the documents and to be on record properly.
11. Costs in the cause.
DATED AND DELIVERED IN OPEN COURT THIS 14TH DAY OF JUNE, 2018. HON. LADY JUSTICE HELLEN WASILWAJUDGEIn the presence of:Mugo for Respondent – PresentClaimant – Absent