[2008] KEHC 1820 (KLR)
The court held that the plaintiff/applicant should be granted leave to file and serve their reply and reply to counter-claim out of time. The fundamental reasoning was that the delay was occasioned by the advocate's mistake, and it would be unjust to penalize the client for such an error. The court exercised its...
Source-derived case information.
- Citation
- [2008] KEHC 1820 (KLR)
- Parties
- Applicant: The Registered Trustees of the Agricultural Society of Kenya; Defendant: Meru Golf Course Limited; Defendant: The Hon. Attorney General; Defendant: Meru Public Golf Course
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1637 of 2007
- Procedural Posture
- Civil Case / Ruling on Application to Enlarge Time to File Reply to Defence and Counter Claim
- Outcome
- Application allowed. Leave granted to file reply to defence and counter-claim out of time, subject to payment of throw away costs.
- Legal Topics
- Enlargement of Time, Reply to Defence, Counter Claims, Mistake of Advocate, Throw Away Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
The Registered Trustees of the Agricultural Society of Kenya
Applicant
Meru Golf Course Limited
Defendant
The Hon. Attorney General
Defendant
Meru Public Golf Course
Defendant
Procedural Posture
Civil Case / Ruling on Application to Enlarge Time to File Reply to Defence and Counter Claim
Legal Issues
- 1 Whether the court should grant leave to the plaintiff to file a reply to the defence and counter-claim out of time.
- 2 Whether the mistake of the advocate should be visited upon the client in the context of procedural delay.
- 3 Whether throw away costs should be awarded for the delay.
Ratio Decidendi
The court held that the plaintiff/applicant should be granted leave to file and serve their reply and reply to counter-claim out of time. The fundamental reasoning was that the delay was occasioned by the advocate's mistake, and it would be unjust to penalize the client for such an error. The court exercised its discretion in favour of the applicant, emphasizing that procedural rules should not be used to defeat substantive justice. However, to balance the interests of the parties and compensate the respondents for the inconvenience caused by the delay, the court ordered the advocate for the plaintiff to personally pay throw away costs to the defendants. The orders were to be complied...
Court Disposition
Application allowed. Leave granted to file reply to defence and counter-claim out of time, subject to payment of throw away costs.
Orders
- Plaintiff/applicant granted leave to file and serve reply and reply to counter-claim out of time within 14 days from the date of the ruling.
- Advocate for the plaintiff to personally pay throw away costs of Ksh.5,000 to the 1st and 3rd defendants and Ksh.1,000 to the 2nd defendant.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 1637 of 2007
THE REGISTERED TRUSTEES OF
THE AGRICULTURAL SOCIETY OF KENYA ………. APPLICANT
VERSUS
MERU GOLF COURSE LIMITED……...………. 1ST DEFENDANT
THE HON. ATTORNEY GENERAL …………….. 2ND DEFENDANT
MERU PUBLIC GOLF COURSE ……………….. 3RD DEFENDANT
RULING
APPLICATION TO ENLARGE TIME TO FILE
REPLY TO DEFENCE AND COUNTER CLAIM
22MARCH 2007
1. BACKGROUND
1. The original suit involves LR20888 being 40. 47 hectares of land or 100 Acres that had been taken from the upper Imenti forest and carried out some time in 1981 to 1983. This land was allegedly given to the Agriculture Society of Kenya. They allegedly took possession and continued to hold shows.
2. On the Narc Government coming to power in the year 2003, the Chief Conservation of forest allocated to the Meru Golf Course Ltd and the Meru Pubic Golf Course the said land which they took possession to construct a golf course.
3. The Agriculture society of Kenya filed suit in 2005. The 1st and 3rd defendant the said Public Golf Course filed defence and counter claim. The 2nd defendant the Attorney General did appear to court and filed defencne.
4. In October 2006 the 16th the said defendant 1 and 3 applied for this suit to be dismissed and or struck out for lack of locus. The application has not been heard.
5. On 22 March 2007 the plaintiff filed an application for leave to file a reply to the defence and to the counter- claim out of time.
6. Under section 6 of the Civil Procedure Act the application of 16. 10. 2006 ought to have been heard first. This anomaly would have been noticed if a call over had been made. The call over for May 2005 was not done under the Division.
7. The application before me therefore and subject of this ruling is 22 March 2007.
Application of 22 March 2007
8. The applicant plaintiff states the advocate made a mistake. This mistake should not be visited upon the plaintiff/applicant – the client.
9. They now pray for enlargement of time to file a reply to the defence and counter-claim.
10. In reply the defendant 1 and 3 object and state that the law ought to have been followed.
III: Opinion
11. I would find that the plaintiff/applicant should be given leave to file and service their said reply and reply to counter claim out of time. The reasons being that a mistake of an advocate should not be visited on the client. That this be done within 14 days of today’s date.
12. The advocate for plaintiff nonetheless will pay the throw away costs personally assessed at Ksh.5,000/- to defendant 1 and 3 Ksh.1,000/- to defendant No.2.
13. Dated this 8th day of May 2008 at Nairobi.
M.A. ANG’AWA
JUDGE
N.K. Selim instructed by N.K. Selim & Co. Advocates for the plaintiff
A. Kinuthai instructed by G.K. Meenye & Co. Advocates for the 3rd defendant/respondents – present
B.M. Chahale for the Attorney General for the 2nd defendant/Respondent - present