[2022] KEELC 1487 (KLR)
The court found that the Defendant's explanation for the delay in filing its defence and counterclaim was plausible and excusable, particularly in light of the Covid-19 pandemic, which disrupted normal operations. The court exercised its discretion to admit the counterclaim as properly filed, provided that the...
Source-derived case information.
- Citation
- [2022] KEELC 1487 (KLR)
- Parties
- Plaintiff: Peter Obondo Kahi (suing as the Administrator of Nakumatt Holdings Limited); Defendant: Board of Trustees National Social Security Fund (NSSF)
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E063 of 2020
- Procedural Posture
- Civil Application / Ruling on Application to Strike Out Defence and Counterclaim
- Outcome
- application dismissed; counterclaim admitted subject to filing of verifying affidavit; costs awarded to plaintiff
- Judges
- LN Mbugua
- Legal Topics
- Striking Out Pleadings, Late Filing of Defence, Counterclaim Requirements, Verifying Affidavit, Exercise of Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Obondo Kahi (suing as the Administrator of Nakumatt Holdings Limited)
Plaintiff
Board of Trustees National Social Security Fund (NSSF)
Defendant
Procedural Posture
Civil Application / Ruling on Application to Strike Out Defence and Counterclaim
Legal Issues
- 1 Whether the Defendant's counterclaim should be struck out for late filing and lack of a verifying affidavit.
- 2 Whether the delay in filing the defence and counterclaim is excusable under the circumstances of the Covid-19 pandemic.
Ratio Decidendi
The court found that the Defendant's explanation for the delay in filing its defence and counterclaim was plausible and excusable, particularly in light of the Covid-19 pandemic, which disrupted normal operations. The court exercised its discretion to admit the counterclaim as properly filed, provided that the verifying affidavit is filed and served within seven days. The court emphasized that there was no inordinate delay and that the interests of justice favored allowing the matter to proceed on its merits. However, the Defendant was penalized with thrown away costs for the late filing.
Court Disposition
application dismissed; counterclaim admitted subject to filing of verifying affidavit; costs awarded to plaintiff
Orders
- The Plaintiff's application to strike out the defence and counterclaim is dismissed.
- The Defendant's counterclaim is admitted as properly filed, subject to filing and serving the verifying affidavit within 7 days.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAIROBI
ELC CASE NO. E063 OF 2020
PETEROBONDO KAHI
(suing as the Administrator ofNAKUMATT HOLDINGS LIMITED......................PLAINTIFF
VERSUS
BOARD OF TRUSTEES NATIONAL SOCIAL SECURITY FUND (NSSF)........DEFENDANT
RULING
1. Before me is an application dated 16. 11. 2020 in which the Plaintiff is seeking the dismissal of the Defendants defence and counterclaim. The Applicant avers that summons to enter appearance were served upon the Defendant on 10. 9.2020 and that factoring working days, excluding weekends in terms of Order 6 Rule I of the Civil Procedure Rule 2010, the Defendant ought to have entered appearance on 30. 9.2020 while defence and counterclaim ought to have been filed by 20. 10. 2020.
2. However, the Memorandum of appearance was filed on 7. 10. 2020 while defence and counter claim was filed on 22. 10. 2020 in contravention with the aforementioned rules of procedure. That in the aforementioned circumstances, the Plaintiff proceeded to lodge a request for interlocutory judgment on 8. 10. 2020.
3. The Plaintiff further states that no verifying affidavit has been filed to support the counterclaim.
4. The Defendant has opposed the application vide a Replying Affidavit dated 18. 3.2021 and admits having been served with the pleadings in Defendant’s offices on 10. 9.2020. However, the Covid-19 pandemic had scaled down activities especially in government offices and hence the process of instructing their advocates and filing their documents took a while. The defence further states that they mistakenly omitted to scan the verifying affidavit but the same is ready.
5. I have considered all the arguments raised herein. In terms of the directions given on 11. 11. 2021 by the Court, the issue for determination is whether the counterclaim of the Defendant should be struck out.
6. It is noted that the Applicant was directed to file their submissions by 18. 11. 2021 while Respondent was to file theirs by 2. 12. 2021 but no such submission were filed.
7. This court takes judicial notice that for the better part of year 2020, a pandemic known as Covid-19 visited the country and the entire globe thereby hampering the normal activities.
8. In Habo Agencies Limited vs. Wilfred Odhiambo Mosirego (2015) eKLR , the case of Ratnan v Cumasany (1964) 3 ALL E. R 933 was cited where it was held that;
“The rules of court must prima facie be obeyed and in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material on which the court has exercised its discretion”
9. I find that the explanation given by the Defendant in the delay to file its pleadings is plausible and excusable noting that there was no inordinate delay in filing the pleadings in question. I am inclined to exercise discretion in favour of admitting the counterclaim of the Defendant as having been properly filed. The corresponding verifying affidavit is to be filed and served within the next 7 days.
10. The application is dismissed but the Defendant still having filed their documents late are condemned to pay thrown away costs of Kshs 15,000 to the Plaintiff.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 9TH DAY OF FEBRUARY, 2022 THROUGH MICROSOFT
TEAMS.
LUCY N. MBUGUA
JUDGE
In the presence of:-
Amandi holding brief for Daudi Mumbe for the Plaintiff
Court Assistant: Eddel Barasa