[2004] KEHC 534 (KLR)
The court held that, guided by the Court of Appeal decision in Central Bank of Kenya v Uhuru Highway Development Limited and Three Others, it is bound not to disregard any document on record, even if irregularly filed, in the interest of justice. The court invoked its inherent powers under Section 3A of the Civil...
Source-derived case information.
- Citation
- [2004] KEHC 534 (KLR)
- Parties
- Applicant: Shah & Parekh; Respondent: Apollo Insurance Co. Ltd.
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 263 of 2003
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application to Strike Out Grounds of Opposition and for Enlargement of Time
- Outcome
- Application to strike out grounds of opposition dismissed; Applicant/Respondent allowed to rely on the grounds of opposition; costs for the day awarded to Respondent/Applicant.
- Legal Topics
- Enlargement of Time, Grounds of Opposition, Irregular Filing, Inherent Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Shah & Parekh
Applicant
Apollo Insurance Co. Ltd.
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application to Strike Out Grounds of Opposition and for Enlargement of Time
Legal Issues
- 1 Whether the court should strike out the grounds of opposition filed and served on the hearing date for non-compliance with Order 50 Rule 16(1) of the Civil Procedure Rules.
- 2 Whether the court should allow reliance on irregularly filed documents in the interest of justice.
Ratio Decidendi
The court held that, guided by the Court of Appeal decision in Central Bank of Kenya v Uhuru Highway Development Limited and Three Others, it is bound not to disregard any document on record, even if irregularly filed, in the interest of justice. The court invoked its inherent powers under Section 3A of the Civil Procedure Act to allow the Applicant/Respondent to rely on the Grounds of Opposition filed on the hearing date. The court further ordered that the Respondent/Applicant's costs for the day be paid by the Applicant/Respondent.
Court Disposition
Application to strike out grounds of opposition dismissed; Applicant/Respondent allowed to rely on the grounds of opposition; costs for the day awarded to Respondent/Applicant.
Orders
- The Applicant/Respondent is allowed to rely on the Grounds of Opposition filed on 24th February 2004 at the hearing of the application dated 26th January 2004.
- The Respondent’s/Applicant’s costs for 24th February 2004 are to be paid by the Applicant/Respondent.
Full Case Text
Judgment text and source record
13 paragraphs
IN THE HIGH COURT OF KENYA AT N AIROBI
MISC. APPLICTION NO. 263 OF 2003
SHAH & PAREKH…………………….APPLICANT/RESPONDENT
versus
APOLLO INSURANCE CO. LTD…..RESPONDENT/APPLICANT
R U L I N G
The Respondent/Applicant by a Chamber Summons dated the 26th January 2004 sought various orders including an order to enlarge the time within which the Applicant may file a Notice of Objection to the decision of the Taxing Master made on the 20th November 2003.
When such application came up for hearing on the 24th February 2004, Mr. Simiyu for Respondent/Applicant moved the Court to strike out the Grounds of Opposition dated the 23rd February 2003 and filed and served by the Applicant/Respondent on the 24th February 2004 (being the day of the hearing of the said application) on the grounds that the Applicant/Respondent has not complied with the provisions of Order 50 Rule 16 (1) of the Civil Procedure Rules In reply, Mr. Tiego for the Applicant/Respondent while confirming that the said Grounds of Opposition were, indeed, filed and served on the day the said application was to be heard, contended that the proceedings herein are governed by the Advocates Act and not the Civil Procedure Act and that in any event, such grounds raise several points of law which the Court is obliged to hear.
I have considered the submissions of both counsels in conjunction with the decision of the Court of Appeal in the Central Bank of Kenya –vs- Uhuru Highway Development Limited and Three Others (Civil Appeal No. 75 of 1998 (unreported) in which it was held that the Court in its duty to see that justice is done is bound not to disregard any document on the record notwithstanding that it is irregularly filed and I am persuaded and bound to follow that decision.
Accordingly, I invoke the inherent power of the Court under Section 3A of the Civil Procedure Act and order that the Applicant/Respondent be and is hereby allowed to rely on the said Grounds of Opposition filed on the 24th February 2004 at the hearing of the said application dated the 26th January 2004. It is further ordered that the Respondent’s/Applicant’s costs for the 24th February 2004 be paid by the Applicant/Respondent.
Dated and delivered at Nairobi this 2nd day of March 2004.
P. Kihara Kariuki
Ag. Judge