[2013] KEHC 4942 (KLR)
The court found that the respondent's counsel's conduct in filing documents out of time without leave was indiligent and prejudicial to the expeditious determination of the appeal. However, in the interests of justice and to avoid further delay, the court exercised its discretion to admit the late replying affidavit...
Source-derived case information.
- Citation
- [2013] KEHC 4942 (KLR)
- Parties
- Appellant: Town Clerk, City Council of Nairobi; Appellant: City Council of Nairobi; Defendant: Peter Njuguna Kuria & 214 Others
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 414B of 2011
- Procedural Posture
- Civil Appeal / Ruling on Application to Set Aside Dismissal Order and for Stay of Execution
- Outcome
- Application for admission of late documents allowed conditionally; costs and adjournment fees imposed personally on respondent's counsel; compliance to be monitored at next mention.
- Judges
- DA Onyancha
- Legal Topics
- Setting Aside Orders, Stay of Execution, Late Filing of Affidavit, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Town Clerk, City Council of Nairobi
Appellant
City Council of Nairobi
Appellant
Peter Njuguna Kuria & 214 Others
Defendant
Procedural Posture
Civil Appeal / Ruling on Application to Set Aside Dismissal Order and for Stay of Execution
Legal Issues
- 1 Whether the court should set aside its previous order dismissing the application for stay of execution.
- 2 Whether the court should admit the respondent's replying affidavit and submissions filed out of time.
- 3 Whether costs should be imposed personally on counsel for delay and indiligence.
Ratio Decidendi
The court found that the respondent's counsel's conduct in filing documents out of time without leave was indiligent and prejudicial to the expeditious determination of the appeal. However, in the interests of justice and to avoid further delay, the court exercised its discretion to admit the late replying affidavit and submissions, on the strict condition that the respondent's counsel personally pays assessed costs and court adjournment fees within a specified period. The court made it clear that failure to comply with this condition would result in the dismissal of the application and allow the appellant to proceed with execution. The decision balanced the need for procedural compliance...
Court Disposition
Application for admission of late documents allowed conditionally; costs and adjournment fees imposed personally on respondent's counsel; compliance to be monitored at next mention.
Orders
- Respondent's replying affidavit and written submissions admitted out of time.
- Respondent's counsel Mr. Oyalo to personally pay applicant/appellant's costs of Kshs.5,000 and court adjournment fee of Kshs.1,000 within 10 days.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
Civil Appeal 414B of 2011
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TOWN CLERK, CITY COUNCIL OF NAIROBI ............... 1ST APPLICANT/APPELLANT
CITY COUNCIL OF NAIROBI .......................................... 2ND APPLICANT/APPELLANT
VERSUS
PETER NJUGUNA KURIA & 214 OTHERS ………......…..................……DEFENDANT
R U L I N G
The application before the court is the Notice of Motion dated 2nd July, 2012. The applicant/appellant, under it, sought orders to set aside this court’s orders made on 9th May, 2012 dismissing an application dated 30th August, 2011. The latter application itself, sought a stay of execution of a judgment entered against the applicant/appellant by the lower court.
On 4th July, 2012 the Respondent was given leave to file an opposing replying affidavit within 14 days and the applicant would then file a supplementary affidavit within 14 days after service. The applicant was after the above orders have been complied with, ordered to file a written submission within 45 days followed by the Respondent’s within 21 days of service.
On 25th September, 2012 the matter was mentioned, when it was observed that the Respondent who had been given time to file a replying affidavit within 14 days had failed to do so. The applicant/appellant nevertheless went ahead and filed his written submission. Mr. Oyalo, counsel for the Respondent apologized and sought further indulgence. The court excused him and gave him more time to file the replying affidavit and the written submissions within a further 14 days thereafter. The Respondent was however to pay court adjournment fee of Kshs.1,000/- and Appellant’s costs of Kshs.2,000/- before the next date.
By 7th November, 2012 when the matter came up for hearing as ordered by court on 29th September, 2012, it was observed that Mr. Oyalo had paid the court adjournment fee only that morning but had also filed his Replying Affidavit outside the 14 days granted on 25th September, 2012 without leave of court. In addition, he had filed the written submissions to oppose this application also on 11th October, 2012 which was also out of time. He therefore orally sought further leave to file a formal application for the court to admit the said late Replying Affidavit and written submissions. The oral application was opposed.
I have carefully considered the conduct of the Respondent’s counsel, Mr. Oyalo. It is without saying more, unbecoming. It is clearly against his client’s interest and liable to undermine his client’s interest besides being indiligent. It delays the progress of this appeal and probably the interest of his client in enjoying the judgment if the appellant’s appeal will not succeed.
I have agonised over whether or not the Respondent should be given further time to file another application to admit the written submissions and the replying affidavit. I find that there is no point in doing so. Instead I will under the court’s discretion, admit the documents, which I hereby do on the condition that the Respondent will meet the Applicant/Appellant’s costs assessed by the court at Kshs.5,000/- and court adjournment of Kshs.1,000/- for 7th November, 2012, both payable by Mr. Oyalo personallywithin 10 days after which this court will fix the application before the court dated 2nd July, 2012 for a ruling. In default of such payment, the court will dismiss the said application dated 2nd July, 2012 and allow the appellant to proceed to execute the order for recovery of the same. Meanwhile, the court fixes the matter for mention on 18th March 2013 to observe compliance. Orders accordingly.
DATED and DELIVERED at Nairobi on the 7th day of March 2013.
...............................................
D.A. ONYANCHA
JUDGE