[2023] KEHC 25427 (KLR)

Wairiuko v Njue & another; Epicenter Africa Limited (Interested Party) (Commercial Suit E034 of 2020) [2023] KEHC 25427 (KLR) (Commercial and Tax) (17 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25427 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Commercial Suit E034 of 2020

FG Mugambi, J

November 17, 2023

Between

Erick Kanja Wairiuko

Plaintiff

and

Mary Muthoni Njue

1st Defendant

Kenya Women Microfinance Bank Limited

2nd Defendant

and

Epicenter Africa Limited

Interested Party

Ruling

1. This ruling determines the application dated 26th October 2022 filed by the 2nd defendant. It is brought under Articles 50(1) & 159(2)(d)(e) of thethe the Constitution of Kenya, 2010, Sections 1A, 1B & 3A of the Civil Procedures Act, Cap 21 and Order 50 rule 6 of the Civil Procedures Rules, 2010. The application seeks leave to file a defence out of time.

2. The application is premised on the grounds on the face of it and supported by the affidavit of Marion Wasike the legal officer and authorised signatory of the applicant sworn on 26th October 2022. The applicant filed written submissions dated 5th May 2023. In summary the applicant’s grounds are that it has a triable case, that no prejudice will be suffered by the parties and that it is in the interest of justice the application be allowed. The application is made without unreasonable delay. It avers that the applicant will suffer immense injustice if the application is not allowed.

3. The background to the dispute is that the applicant confirms having been served with a plaint together with a Notice of Motion application dated 13th February 2020. The plaintiff sought injunctive orders against the applicant. It is further confirmed that the applicant responded to the application on 24th February 2020.

4. The application was heard and dismissed vide a ruling dated 22nd January 2021, setting in motion the exercise of the statutory power of sale by the applicant, which culminated to a public auction of the suit property.

5. The applicant now seeks leave to file a defence and counterclaim to the suit so as to recover the outstanding loan arrears. In addition to the grounds already stated, the applicant invokes the rules of natural justice, citing Article 159 of thethe the Constitution of Kenya 2010.

6. The applicant placed reliance in the case of Alliance Media Kenya Ltd v Sports Stadia Management Board, [2021] eKLR, where the Honourable Court reiterated the holding in the case of Mbaki & others v Macharia & another, (2005) 2 EA 206, at page 210. The court stated that:“the right to be heard is a valued right. It would offend all notions of justice if the rights of a party were to be prejudiced or affected without the party being afforded an opportunity to be heard.”

7. The application was opposed by way of a replying affidavit sworn by Mary Muthoni Njue on 29th November 2022. The respondent further filed written submissions dated 30th May 2023. The plaintiff and the interested party did not participate in the application.

8. According to the respondent, there was no valid prayer remaining in the plaintiff’s suit that was capable of being defended and thus filing the defence and counterclaim would amount to a mere academic exercise. This is because the suit was premised on the suit property being House No 12 situated on LR number 168/26 River Estate, Kianjogu Area Limuru, which had since been auctioned. In any case, the respondent argues that no reasons had been advanced for the delay of 2 years and 8 months by the applicant to file the intended defence and counterclaim.

9. Counsel for the respondent also argued that the intended counterclaim was fatally defective and incompetent as the application only sought leave to put in a defence and not a counterclaim. Counsel stated that courts had no inherent powers to award prayers where no such pleas have been sought.

10. The respondent cited the Court of Appeal case in Caltex Oil Kenya Limited v Rono Limited, (2016) eKLR where the court held:“If a party wishes the court to determine or grant a prayer it must be specifically pleaded and proved. the pleadings are a precursor for a party to lead evidence in satisfaction of the prayers he seeks to be granted in his favour. where no such prayer is pleaded in a specific and somewhat particularized manner, the party is not entitled to benefit and the court has no jurisdiction to whimsically grant the orders.”

11. Counsel submitted further that the counterclaim seeks relief against a co-defendant which offends the law as provided under Order 7 rules 7 and 8 of the Civil Procedure Rules. According to the respondent, a counterclaim being like a cross- suit could only lie against the person who instituted the suit and not a co-defendant.

Analysis 12. I have carefully considered the pleadings, evidence and Counsel’s submissions as well as the authorities cited by each party. The only issue for determination is whether the applicant has met the threshold of granting the orders sought.Order 7 of the Civil Procedure Rules provides for the procedure in relation to defence and counterclaims. Rule 7 requires that:“Where any defendant seeks to rely upon any grounds as supporting a right of counterclaim, he shall, in his statement of defence, state specifically that he does so by way of counterclaim.”

13. I would therefore agree with the respondent that the application filed does not comply with this requirement as it seeks leave to file a defence (and not a defence and counterclaim as annexed). Even if the Court were to find that this was an inadvertent error that could be cured, there still remains the question of extension of time to file the pleadings out of time.

14. The principles applicable for extension of time were summarized by the Supreme Court in County Executive of Kisumu v County Government of Kisumu, [2017] eKLR where it cited its decision in Nicholas Kiptoo arap Salat v Independent Electoral Boundaries Commission & others, [2014] eKLR as follows:“…the under-lying principles that a Court should consider in exercise of such discretion:i.Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;ii.A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;iii.Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;iv.Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;v.Whether there will be any prejudice suffered by the respondents if the extension is granted;vi.Whether the application has been brought without undue delay; andvii.Whether in certain cases, like election petitions, public interest should be a consideration for extending time.”

15. It is in light of the aforesaid provisions and principles that I turn to consider the application. I do note that in addition to citing Order 50 rule 6, the applicant has also relied on article 159 of the Constitution, which I may add, provides for equal protection of all persons by the law. My understanding of this is that the Court ought to balance between the applicant and the respondent’s constitutional rights.

16. In doing so, I note that the applicant has given no reasons whatsoever for the delay of over 2 years in filing the intended defence and counterclaim. It is not denied that the suit was filed on 13th February 2020, while the current application is dated 26th October 2022, 2 years and 8 months later. In the absence of any explanation this court can only infer that this application has come as an afterthought.

17. Not only has there been delay in filing the same, the application stands to prejudice the respondent particularly looking at the circumstances of this case. I take queue from the case of Nadeem a Kana v Lucy Wambui Mwangi, [2021] eKLR which was relied upon by the respondent. The court in that matter held that:“…A matter overtaken by events cannot be tenable anymore and if it proceeds to success the victory would be pyrrhic.”

18. A perusal of the pleadings filed before me establishes, that the orders sought by respondent revolved around the preservation of the suit property, House No 12 situated on LR number 168/26 River Estate, Kianjogu Area Limuru. As the prayers sought were overtaken by the public auction conducted by the applicant, I thus agree with the respondent that there is no other relief available on the suit. This court therefore finds that it will not be in the interest of justice to allow the applicant leave to file a defence to the suit.

19. It is no wonder that the respondent has taken no necessary action to proceed with the suit after the suit property was sold. For the avoidance of doubt, I find that the suit allegedly filed by the plaintiff does not disclose any reasonable cause of action. The plaint dated 13th February 2020 is hereby ordered struck out. The Notice of Motion application dated 26th October 2022 is also bereft of merit. The same is dismissed. Each party shall bear their own costs.

DATED, SIGNED AND DELIVERED IN NAIROBI THIS DIVISION 17TH DAY OF NOVEMBER 2023. F. MUGAMBIJUDGE