[2020] KEHC 9959 (KLR)
The court held that although the defendant's replying affidavit was filed outside the 14-day period previously granted, the court retains discretion to admit the affidavit in the wider interest of justice. The court found that no prejudice would be suffered by the plaintiff if the affidavit was admitted, and that...
Source-derived case information.
- Citation
- [2020] KEHC 9959 (KLR)
- Parties
- Plaintiff: Wilfred Ngunjiri Nderitu T/A Nderitu & Partners Advocates; Defendant: National Housing Corporation
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case E091 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Strike Out Replying Affidavit and for Extension of Time
- Outcome
- Application to strike out replying affidavit dismissed; time for filing replying affidavit enlarged; defendant's replying affidavit admitted on record.
- Judges
- WA Okwany
- Legal Topics
- Extension of Time, Striking Out Pleadings, Right to Fair Hearing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wilfred Ngunjiri Nderitu T/A Nderitu & Partners Advocates
Plaintiff
National Housing Corporation
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Strike Out Replying Affidavit and for Extension of Time
Legal Issues
- 1 Whether the defendant's replying affidavit filed outside the 14-day period should be struck out.
- 2 Whether the court should grant leave to the defendant to enlarge time for filing the replying affidavit.
- 3 Whether admitting the late affidavit would prejudice the plaintiff.
Ratio Decidendi
The court held that although the defendant's replying affidavit was filed outside the 14-day period previously granted, the court retains discretion to admit the affidavit in the wider interest of justice. The court found that no prejudice would be suffered by the plaintiff if the affidavit was admitted, and that striking out pleadings is a drastic measure reserved for rare instances. The court emphasized the constitutional principles of fair hearing and the need to administer justice without undue regard to procedural technicalities. Consequently, the court admitted the defendant's replying affidavit and granted the plaintiff liberty to file a further affidavit in response within 14 days.
Court Disposition
Application to strike out replying affidavit dismissed; time for filing replying affidavit enlarged; defendant's replying affidavit admitted on record.
Orders
- The defendant's replying affidavit filed on 4th February 2020 is admitted on record.
- The plaintiff is at liberty to file a further affidavit in response within 14 days from the date of the ruling.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL AND TAX DIVISION
HCCC NO. E091 OF 2018
WILFRED NGUNJIRI NDERITU
T/A NDERITU & PARTNERS ADVOCATES ..................................PLAINTIFF
VERSUS
NATIONAL HOUSING CORPORATION........................................DEFENDANT
RULING
1. When the application dated 3rd September 2019 came up for hearing on 5th February 2020, Mr. Ndirangu, learned counsel for the plaintiff, urged this court to strike out the defendant’s replying affidavits filed on 4th February 2020 on the basis that it was filed outside the 14 days period granted by the court on 7th November 2019.
2. On her part, Miss Nyaaga for the defendant sought the court’s leave under order 50 Rule 6 of the Civil Procedure Rules to enlarge the time within which the replying affidavit should have been filed.
3. Articles 50(1) and 25(c) of the Constitution stipulates as follows on the right to fair hearing:
Article 50(1) of the constitution
(1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.
Article 25(c) of the Constitution(c) the right to a fair trial;
Article 159(2) (d) on the other hand stipulates as follows:-
(2) In exercising judicial authority, the courts and tribunals shall be guided by the following principles—
(d) justice shall be administered without undue regard to procedural technicalities;
4. Having regard to the above cited Articles, I find that even though the defendant’s replying affidavit was filed outside the 14 days granted by this court, the court still has the discretion, in the wider interest of justice, to allow/admit the replying affidavit considering that it has already been placed on record.
5. Courts have taken the position that the striking out the pleadings is a very drastic measure that can only be taken in rare instances as to do so will be tantamount to preventing a party from being heard.
6. In the present case, I find that no prejudice will be suffered by the plaintiff if the defendant’s replying is admitted on record. Consequently, I admit the replying affidavit filed on 4th February 2020. The plaintiff is at liberty to file a further affidavit, if need be, in response to the replying affidavit, within 14 days from todays date.
Dated, signed and delivered in open court at Nairobi this 20th day of February 2020.
W. A. OKWANY
JUDGE
In the presence of:
Miss Ndirangu for Nderitu for plaintiff.
No appearance for defendant.
Court Assistant: Sylvia