Apolo Ambutsi Shikanga v Jomo Godwin Kororia [2015] KEELC 277 (KLR)
The bottom line
#A Kenyan court gave a defendant 14 more days to file a defence, saying a fair hearing matters more than a missed deadline.
What this practically means
#Executive summary
#Key legal issues
#Discretion to enlarge time for filing of defence
The application was allowed; the court enlarged time by 14 days on the ground that the failure to file the defence was sufficiently explained by the advocate's departure of an employee who did not inform the firm, and the defendant was not out to delay the case.
The defendant initially acted in person; after engaging counsel, a date for hearing was taken without the firm checking whether a defence had been filed. The deponed explanation by Mr. Kidiavai that Mr. Teti left the firm without informing him that no defence had been filed was not denied by the plaintiff. Since the case had not taken off and a draft defence with triable issues was annexed, it was unfair to deny the defendant a hearing.
Allegation that the application was brought to delay the case
The court rejected the plaintiff's contention that the application was merely for delay, finding instead that the defendant was not out to delay the case.
The plaintiff contended that the defendant was personally in court when given 14 days to file defence and that the application was brought to delay conclusion of the case. The court found the explanation for non-filing credible and unrebutted, and noted the case had not taken off, making it unfair to deny the defendant a hearing on his draft defence.
Legal principles established
#- Where a case has not taken off, it is unfair to deny a defendant an opportunity to be heard on a defence with triable issues, provided the failure to file within time is sufficiently explained.
Court orders
#- 1.The application is allowed and time for filing defence is enlarged by 14 days from the date of the order
- 2.The defendant to file and serve a defence within the 14 days
- 3.Costs of the application shall be in the cause
- Jurisdiction invoked
- Inherent discretion of the court to enlarge time for filing of defence (civil procedure practice); no specific constitutional or statutory provision cited
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Apolo Ambutsi Shikanga v Jomo Godwin Kororia [2015] KEELC 277 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/277/eng@2015-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.