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ELCAllowed· [2017] KEELC 3130 (KLR)

Koome Samuel Mwiraria v Nickson Mugambi Ruche [2017] KEELC 3130 (KLR)

High Court of Kenya
23 March 2017
PNP.M. Njoroge
511 words in judgment
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The bottom line

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Kenya's High Court struck out a defence filed late and served without the witness statements and documents required by civil procedure rules, costing the defendant their case.

What this practically means

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Executive summary

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This interlocutory ruling by P.M. Njoroge J at Chuka determined an application by the plaintiff, Koome Samuel Mwiraria, seeking to strike out the defendant's defence dated 4th January 2017 and for costs. The plaintiff, through his advocate Mr Frank Gitonga, argued that although the defendant entered appearance on 13th December 2016 and filed his defence on 4th January 2017, he failed to serve the defence on the plaintiff's counsel until 28th February 2017, nearly three months after appearance and two months after filing, and it was received under protest. The plaintiff further contended that the defence breached Order 7 Rule 1 of the Civil Procedure Rules, which requires a defence to be filed and served within 14 days of appearance, and Order 7 Rule 5, because it was not accompanied by a list of witnesses, signed witness statements or documents to be relied on at trial. The plaintiff maintained that these lapses showed the defendant did not seriously wish to defend the suit or was intent on delaying it, to the prejudice of the speedy prosecution of the suit. When the matter came up on 13th March 2017, counsel for the defendant, Miss Baikiata holding brief for Mr D.J. Mbaya, conceded that the defendant had been uncooperative and sought 30 days to file a response to the application. The court considered the application and submissions, found that it merited being allowed, struck out the defence, and awarded costs to the plaintiff.

Key legal issues

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01

Whether the defendant's defence should be struck out for late filing and service and non-compliance with Order 7 Rules 1 and 5

Holding

The court allowed the application and struck out the defence, finding the defendant's conduct indicated an intent to delay the suit.

Reasoning

The court considered the application showing the defence was filed on 4th January 2017 but only served on the plaintiff's counsel on 28th February 2017, nearly three months after appearance, contrary to Order 7 Rule 1's 14-day requirement, and served without the list of witnesses, signed witness statements and documents required by Order 7 Rule 5. The defence was received under protest. Having considered the application and parties' submissions, the court found the application merited being allowed and struck out the defence, awarding costs to the plaintiff.

p. 2

Legal principles established

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  • A defence filed late and served without compliance with Order 7 Rules 1 and 5 of the Civil Procedure Rules (affidavit of service, list of witnesses, signed witness statements and documents to be relied on) may be struck out.

Court orders

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  1. 1.The plaintiff's application is allowed
  2. 2.The defendant's defence dated 4th January 2017 is struck out
  3. 3.Costs are awarded to the plaintiff

Authorities

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Legislation

  • Civil Procedure RulesOrder 7 Rule 1
  • Civil Procedure RulesOrder 7 Rule 5
Jurisdiction invoked
Not stated in the judgment

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, "Koome Samuel Mwiraria v Nickson Mugambi Ruche [2017] KEELC 3130 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3130/eng@2017-03-23

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