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ELCOtherHCC No. 20 of 2006· [2016] KEELC 263 (KLR)

Priscilla Jeruto Kisoso & Kiporot Ole Totona Alias Singo Arap Totona & 3 others [2016] KEELC 263 (KLR)

Environment and Land Court of Kenya
21 March 2016
1,517 words in judgment
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The bottom line

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A Kenyan court ruled that failing to serve a filed document is a fixable mistake, not a fatal error, so the plaintiff's late documents were admitted.

What this practically means

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Executive summary

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In this interlocutory ruling (Ruling No.2) in a long-running land suit (HCC No. 20 of 2006), the Environment and Land Court at Nakuru, per Munyao Sila J, dealt with applications arising immediately after the court had struck out three parties named in the 1st defendant's counterclaim for want of service. Counsel for the defendant, Mr Arusei, then applied for the striking out of the plaintiff's Reply to Defence and Defence to Counterclaim and two witness statements, both never served, relying on Order 2 Rule 13 and arguing that non-service was an illegality rendering the documents nullities; he also sought judgment on the counterclaim and the disqualification of two plaintiff's witnesses. Plaintiff's counsel, Mr Karanja, conceded non-service but attributed it to inadvertence, submitting there was no prejudice and that the issue was irregularity rather than illegality. The court rejected the 'sword of justice cuts both ways' argument, holding that every application must be assessed on its own merits. It further held that failure to serve a filed document is not an illegality but an irregularity, since the Civil Procedure Rules do not forbid late service, leaving the court a discretion. Finding no prejudice, the court admitted the Reply to Defence and Defence to Counterclaim out of time, admitted the witness statements and ordered their service forthwith, allowed the defendants 30 days to file additional witness statements or documents, and ordered the plaintiff to bear the day's costs.

Key legal issues

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01

Whether the court's earlier ruling striking out unserved parties compelled a reciprocal striking out of the plaintiff's unserved documents

Holding

No; each application must be considered on its own merits, not on an 'eye for an eye' basis

Reasoning

Counsel for the defendant argued the sword of justice cuts both ways. The court accepted the maxim but rejected its use to tie the court's hands, illustrating with a football analogy that denying one party relief does not oblige the court to deny the other party equivalent relief. Every application must be weighed independently on its own merits.

p. 2
02

Whether non-service of a filed document is an illegality removing the court's discretion

Holding

It is not; the Civil Procedure Rules do not forbid late service, which is an irregularity curable by leave

Reasoning

The court consulted the Concise Oxford English Dictionary definition of illegality and compared it with the Civil Procedure Rules, which prescribe when pleadings and documents may be served but do not prohibit service thereafter. Late service may be sanctioned by the court on application for service out of time, and the discretion must be exercised judicially on reasons given.

p. 2
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Whether the plaintiff's unserved witness statements should be admitted and the witnesses allowed to testify

Holding

Yes; the mis-service on the wrong law firm was a pure mistake causing no prejudice, compensable by costs and liberty to add further evidence

Reasoning

The witness statements were drawn for service on M/s Gordon Ogolla & Co. Advocates, a firm previously in the proceedings, suggesting confusion. The trial was starting de novo, so earlier testimony was irrelevant. The defendant was to be given leeway to assess whether to call additional witnesses or rely on additional documents, and costs would compensate any prejudice.

p. 3

Legal principles established

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  • A court must assess every application on its own merits and is not bound to grant or deny a later application merely because of its earlier ruling on an application by the other party
  • Failure to serve a filed document within the prescribed time is an irregularity, not an illegality, and the court retains a discretion to admit the document out of time

Court orders

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  1. 1.The Reply to Defence and Defence to Counterclaim filed on 29 November 2011 is admitted out of time
  2. 2.The two plaintiff's witness statements are admitted and to be served forthwith
  3. 3.The defendants are at liberty to file any additional witness statement and/or documents within 30 days
  4. 4.Today's costs are shouldered by the plaintiff

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 Rule 13

Cases cited (2)

  • Kenya Transport Association Vs. Municipal Council of Mombasa
    Mombasa High Court Constitutional Petition No.6 of 2011
  • Benjamin Leonard MacFaoy – Vs - United Africa Ltd
    (1962) AC 152
Jurisdiction invoked
Environment and Land Court, original civil jurisdiction (HCC No. 20 of 2006)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Priscilla Jeruto Kisoso & Kiporot Ole Totona Alias Singo Arap Totona & 3 others [2016] KEELC 263 (KLR)", Case Analysis (2016). HCC No. 20 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/263/eng@2016-03-21

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