[2007] KEHC 3085 (KLR)
The court held that the replying affidavit filed by the respondent was served and filed out of the time prescribed by Order 50 rule 16(1) of the Civil Procedure Rules, which is mandatory. No application was made to extend time or to deem the late affidavit as properly filed. As a result, there was no valid replying...
Source-derived case information.
- Citation
- [2007] KEHC 3085 (KLR)
- Parties
- Plaintiff: Titus Gatitu Njau; Defendant: Municipal Council of Eldoret
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 35 of 2005
- Procedural Posture
- Civil Suit / Ruling on Validity of Replying Affidavit and Ex Parte Hearing
- Outcome
- Application to be heard ex parte due to absence of valid replying affidavit.
- Judges
- K Bauni
- Legal Topics
- Affidavit Filing Requirements, Service of Process, Ex Parte Hearing, Timeliness of Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Titus Gatitu Njau
Plaintiff
Municipal Council of Eldoret
Defendant
Procedural Posture
Civil Suit / Ruling on Validity of Replying Affidavit and Ex Parte Hearing
Legal Issues
- 1 Whether the replying affidavit filed by the respondent was valid given the statutory time limits.
- 2 Whether the court should allow the respondent to be heard despite the late filing of the replying affidavit.
- 3 Whether the application should proceed ex parte in the absence of a valid replying affidavit.
Ratio Decidendi
The court held that the replying affidavit filed by the respondent was served and filed out of the time prescribed by Order 50 rule 16(1) of the Civil Procedure Rules, which is mandatory. No application was made to extend time or to deem the late affidavit as properly filed. As a result, there was no valid replying affidavit on record. The court therefore upheld the applicant's submissions and directed that the application proceed ex parte in accordance with Order 50 rule 16(3).
Court Disposition
Application to be heard ex parte due to absence of valid replying affidavit.
Orders
- The application shall be heard ex parte as there is no valid replying affidavit on record.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT ELDORET Civil Suit 35 of 2005
TITUS GATITU NJAU:........................................PLAINTIFF
VERSUS
MUNICIPAL COUNCIL OF ELDORET:......DEFENDANT
RULING
I have considered the submissions of both counsels. It is conceded that replying affidavit was served yesterday after it was filed the day before. the filing of the affidavit therefore do not meet the requirements provided by provisions of order 50 rule 16(10 CPR.
That rule requires a respondent who has been served with an application to file a replying affidavit or grounds of opposition and serve them not less than three days before the hearing date. Those provisions are concluded in mandatory terms. Any replying affidavit or grounds of opposition should be filed within that period. In this case that was not done and as such the affidavit filed two days before was filed out of the time provided for and as such it is of no effect. In short there is no replying affidavit which is on record now.
Order 50 rule 16(3) states that if no replying affidavit or grounds of opposition are filed the court may proceed exparte. I have stated that there is no replying affidavit as the one purported to be on record was filed out of time. The respondent had only one option which would have been consented in the right of the provisions of sub rule (3) of that rule to apply to file the replying affidavit out of time. Then the court may decide whether to allow him to do so or if the court declines to do so proceed to hear the application ex-parte. There is no application before me either formally or orally to allow respondent to file replying affidavit out ot time. There is even no application for court to deem application filed and served yesterday to have been filed in time. Mr. Shivaji has only asked the respondent to be heard. He can’t be heard when there is no affidavit properly filed.
In any case court was told that application was served almost two years ago. Respondent never bothered to file any replying affidavit. The reasons given by Mr. Shivaji that there are other application filed after that one not plainsible. In any case court was told that today’s hearing date was served almost a month ago and yet no steps taken in time. Though the applicant on his party took time to prosecute his application the respondent should have been diligent and made his response in time. In the circumstances I uphold Mr. Chemtai’s submissions that there is no valid replying affidavit on record and direct the application to be heard exparte.
DATED AND DELIVERED AT ELDORET ON 18TH APRIL 2007.
KABURU BAUNI
JUDGE