[2006] KEHC 2132 (KLR)
The court found that the delay of slightly under two months in filing the replying affidavit was not inordinate in the circumstances of the case. The explanation provided by the respondent's counsel, namely his illness, was accepted as adequate justification for the delay. Furthermore, the court noted that under...
Source-derived case information.
- Citation
- [2006] KEHC 2132 (KLR)
- Parties
- Applicant: Rocky Driving School; Respondent: Agimba & Associates, Advocates
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 122 of 2006
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time to File Replying Affidavit
- Outcome
- application allowed
- Judges
- DW Mbuteti
- Legal Topics
- Extension of Time, Replying Affidavit, Non Compliance With Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rocky Driving School
Applicant
Agimba & Associates, Advocates
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time to File Replying Affidavit
Legal Issues
- 1 Whether the delay in filing the replying affidavit by the respondent was inordinate and adequately explained.
- 2 Whether the court should exercise its discretion to enlarge time for filing the replying affidavit.
Ratio Decidendi
The court found that the delay of slightly under two months in filing the replying affidavit was not inordinate in the circumstances of the case. The explanation provided by the respondent's counsel, namely his illness, was accepted as adequate justification for the delay. Furthermore, the court noted that under Order 52 rule 10(2) of the Civil Procedure Rules, a replying affidavit is not mandatory for a party to be heard on the originating summons. Therefore, the court exercised its discretion to allow the application and extended the time for filing the replying affidavit by seven days from the date of the ruling.
Court Disposition
application allowed
Orders
- Time limited by the order of 8th March, 2006 is extended by seven (7) days from the date of delivery of this ruling.
- The applicant/respondent shall have the costs of this application.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MISC CIV APPLI 122 OF 2006
IN THE MATTER OF NAIROBI HCCC 435 OF 2001
AND
IN THE MATTER OF ROCKY DRIVING SCHOOL –VS- UNITED INSURANCE CO. LTD.
BETWEEN
ROCKY DRIVING SCHOOL……………….......................................……………..APPLICANT
AND
AGIMBA & ASSOCIATES, ADVOCATES……......................................…….RESPONDENT
R U L I N G
When the originating summons herein came up for directions on 8th March, 2006 the court ordered that the Respondent may file and serve his replying affidavit within ten (10) days of that date, that is, on or before 18th March, 2006. In the event he did not.
The Respondent has now come to court by chamber summons dated 11th May, 2006 seeking the main order that the court be pleased to enlarge the time limited by the order of 8th March, 2006 to enable him to file the replying affidavit within seven (7) days of the date of such enlargement. The failure to file the replying affidavit within time is explained in the supporting affidavit sworn by the Respondent’s learned counsel, MR. NEVILLE WALUSALA AMOLO. That explanation is that the learned counsel fell ill and was thus unable to draw up the replying affidavit and file the same within the time allowed. When presenting the application learned counsel stated that he has since prepared the replying affidavit which runs to some forty-two (42) paragraphs, and that the same is now ready for filing.
The Applicant filed a replying affidavit on 30th May, 2006 in opposition to the application. Its learned counsel, MRS RASHID, readily conceded that the same was filed and served out of time. I permitted her to address the court on any point of law. Her only submission was that the delay in the present case is inordinate and not adequately explained.
I have considered the submissions of the learned counsels. The present application was filed on 15th May, 2006. If we recall that the replying affidavit should have been filed on or before 18th March, 2006, the delay here was slightly under two months. In the circumstances of this case I do not consider the delay inordinate. At any rate, the indisposition of the Respondent’s learned counsel, as set out in the supporting affidavit, adequately explains the delay. A part from that, it will be noted that the originating summons is brought under Order 52 of the Civil Procedure Rules. By dint of rule 10 (2) of the said Order, no appearance need be entered to the summons and no affidavit in reply need be filed and all parties may be heard without entering an appearance. So, whether or not the Respondent files a replying affidavit, he would be entitled to be heard upon the originating summons.
In the circumstances therefore I will allow the application and extend the time limited by the order of 8th March, 2006 by seven (7) days from the date of delivery of this ruling. The Applicant/Respondent shall have the costs of this application. Orders accordingly.
DATED AND SIGNED AT NAIROBI THIS 12TH DAY OF JUNE, 2006.
H.P.G. WAWERU
JUDGE
DELIVERED THIS 16TH DAY OF JUNE,2006.