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ELCDismissedNot stated in judgment· [2014] KEELC 397 (KLR)

Chairman, Secretary and Treasurer, School Management Committee of Sir Ali Bin Salim Primary School & another v Francis Bahati Diwani & 2 others [2014] KEELC 397 (KLR)

Environment and Land Court
9 May 2014
OAO. A. Angote
1,236 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan land court ruled that a defence filed late can stay on record because late filing is a fixable mistake, not a disqualifying one.

What this practically means

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Executive summary

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The Plaintiff filed a Notice of Preliminary Objection on 6th September 2013 seeking to expunge the 2nd Defendant's statement of defence and list of documents from the record on the ground that they were filed contrary to the applicable law. Counsel for the Plaintiff argued that under Order 7 Rule 1 of the Civil Procedure Rules a defence must be filed within 14 days of entering appearance and served within 14 days of filing, and that the Defendants' documents were also filed outside the 30-day period set by a court order of 20th March 2012 without any enlargement of time. Defence counsel, Mr. Gicharu, relied on sections 1A and 1B of the Civil Procedure Act, urging that the interests of justice required that the Defendants be allowed to ventilate their case, and that the Plaintiff would suffer no prejudice if the defence were deemed filed in time. Angote J held that Order 7 Rule 1 does not prescribe the consequence of late filing, and that Order 10 makes no provision for default in unliquidated claims such as suits for recovery of land, leaving room for a defence to be filed before hearing. Drawing on the Court of Appeal's decision in Nicholas Kinto Arap Korir Salat v IEBC and Welcome Properties v Karuga, the court held that non-compliance with the Rules is a curable irregularity; striking out a pleading is an extreme measure reserved for the clearest cases of abuse of process, and the court must be guided by the overriding objective and Article 159 of the Constitution. Since the Plaintiff showed no injustice or prejudice, the Preliminary Objection was dismissed with costs.

Key legal issues

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01

Effect of filing a defence outside the 14 days prescribed by Order 7 Rule 1 of the Civil Procedure Rules

Holding

The late filing is a curable irregularity, not a ground for automatic striking out, since the Rule does not prescribe the consequence and Order 10 makes no provision for unliquidated claims such as land recovery suits

Reasoning

The court noted Order 7 Rule 1 requires a defence within 14 days but does not state the consequence of late filing. Order 10 provides for default judgments in liquidated demands but has no corresponding rule for unliquidated claims like land recovery, leaving a defendant room to file a defence before hearing. Late filing is therefore an irregularity curable except in clear cases.

p. 2
02

Whether striking out is the proper response to procedural lapses

Holding

No - the court should apply the overriding objective and Article 159 of the Constitution, and decline to strike out where no prejudice or injustice is shown to the opposite party

Reasoning

Relying on the Court of Appeal in Nicholas Kinto Arap Korir Salat v IEBC and Ringera J in Welcome Properties v Karuga, the court held that deviations from form and procedure not going to jurisdiction or the root of the dispute, and causing no prejudice, should not attract the draconian remedy of striking out pleadings. The Plaintiff here showed no prejudice.

p. 3

Legal principles established

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  • An omission to fully comply with a provision of the Civil Procedure Rules is an irregularity which, except in very clear cases, may be cured; striking out a pleading filed out of time is an extreme measure reserved for the clearest cases of abuse of process
  • A procedural defect does not oust the jurisdiction of the court; unless injustice or prejudice is shown, defects of form and procedural lapses cannot vitiate proceedings
  • The court should first examine whether striking out a late pleading conforms with the overriding objective and Article 159 of the Constitution before striking it out

Court orders

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  1. 1.The Plaintiff's Notice of Preliminary Objection is dismissed
  2. 2.The Plaintiff to pay the Defendants' costs of the Preliminary Objection

Authorities

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Legislation

  • Civil Procedure Actsections 1A and 1B
  • Civil Procedure RulesOrder 7 Rule 1
  • Civil Procedure RulesOrder 10 (including Rules 2 and 4)
  • Constitution of KenyaArticle 159

Cases cited (2)

  • NICHOLAS KINTO ARAP KORIR SALAT Vs- INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSIONS & OTHERS
    (2013) eKLR
  • Welcome Properties Vs Karuga
    (2001) KLR 402
Jurisdiction invoked
Environment and Land Court jurisdiction (not expressly cited); Article 159 of the Constitution invoked in reasoning

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (19)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Chairman, Secretary and Treasurer, School Management Committee of Sir Ali Bin Salim Primary School & another v Francis Bahati Diwani & 2 others [2014] KEELC 397 (KLR)", Case Analysis (2014). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/397/eng@2014-05-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.