[2010] KEHC 1592 (KLR)
The court found that while the defendant had previously sought adjournments and failed to file its amended defence and counter-claim within the time allowed by consent, the delay was explained by the change in court fee payment procedures. In the interest of justice, and exercising its discretion under Section 95 of...
Source-derived case information.
- Citation
- [2010] KEHC 1592 (KLR)
- Parties
- Plaintiff: Nguruman Limited; Defendant: Oldonyo Laro Estate Limited
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 103 of 2009
- Procedural Posture
- Civil Case / Ruling on Application for Extension of Time to File Amended Defence and Counter Claim
- Outcome
- Application allowed. Amended defence and counter-claim deemed duly filed. Costs awarded to the defendant.
- Legal Topics
- Extension of Time, Amendment of Pleadings, Consent Orders, Adjournment, Discovery, Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nguruman Limited
Plaintiff
Oldonyo Laro Estate Limited
Defendant
Procedural Posture
Civil Case / Ruling on Application for Extension of Time to File Amended Defence and Counter Claim
Legal Issues
- 1 Whether the defendant should be granted extension of time to file its amended defence and counter-claim out of time.
- 2 Whether the defendant's application constitutes an abuse of court process or a delaying tactic.
- 3 Whether the consent order and previous adjournment orders bar the defendant from seeking extension of time.
Ratio Decidendi
The court found that while the defendant had previously sought adjournments and failed to file its amended defence and counter-claim within the time allowed by consent, the delay was explained by the change in court fee payment procedures. In the interest of justice, and exercising its discretion under Section 95 of the Civil Procedure Act, the court allowed the application and deemed the amended defence and counter-claim filed on 7th June 2010 as duly filed. The court, however, warned both parties that no further adjournments would be entertained and imposed strict timelines for discovery, emphasizing the need for expeditious proceedings.
Court Disposition
Application allowed. Amended defence and counter-claim deemed duly filed. Costs awarded to the defendant.
Orders
- The amended defence and counter-claim filed on 7th June 2010 are deemed duly filed in time.
- No further applications for adjournment will be entertained.
Full Case Text
Judgment text and source record
10 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU
Civil Case 103 of 2009
NGURUMAN LIMITED……………………...……PLAINTIFF
VERSUS
OLDONYO LARO ESTATE LIMITED…..…..…DEFENDANT
RULING
Following the defendant’s application for leave to amend its defence and counter-claim dated 19th May 2010, on 25th May 2010 the parties recorded a consent allowing the defendant to file and serve its amended defence and counter-claim by 3rd June 2010. It filed it on 7th and on 8th June 2010 when the suit was supposed to be heard, the defendant applied under Section 95 of the Civil Procedure Act as well as Orders 49 and 34 of the Civil Procedure Rules for extension to deem the amended defence and counter-claim as filed in time. The application is based on the ground that due to the change in the mode of payment of court fees, the court refused to take counsel for the defendant’s cheque and by the time they arranged for cash, the court had closed. The plaintiff cannot hear of that. It sees this application as one of the defendant’s delaying tactics. Mr. Nowrojee for the plaintiff raised a preliminary objection and argued the application contravenes Section 1A of the Civil Procedure Act; that granting this application will not only set aside the said consent order but will also enable the defendant to go round the order of 8th March 2010 granting it the last adjournment and that the defendant having not filed its list of documents was in any case not ready to proceed with the hearing. Having considered the matter, I agree with Mr. Nowrojee that the defendant does not appear keen to go on with the hearing of this case. On 8th March 2010 when the case came up for hearing, the defendant sought for an adjournment on the ground that the leading counsel was engaged in the Court of Appeal. On securing an adjournment it applied to amend its defence and counter-claim which it was not even able to file in time. In the interest of justice I allow this application and deem the defence and counter-claim filed on 7th June 2010 as duly filed in time. Parties are warned that the court will not entertain applications for adjournment. Any party who will not have completed discovery and served the other side with copies of the documents it wishes to produce within 30 days of the date hereof will not be allowed to produce or even refer to any documents. The defendant shall have the costs of this application.
DATED and DELIVERED at Nakuru this 30th day of June, 2010.
D. K. MARAGA
JUDGE.