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ELCAllowedApplication dated 21st November, 2017 (Plaint dated 26th July, 2017)· [2018] KEELC 1739 (KLR)

Joshua Mulungu Mutie & another v County Government of Machakos [2018] KEELC 1739 (KLR)

Environment and Land Court
28 September 2018
OAO. A. Angote
1,260 words in judgment
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The bottom line

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Kenya's Environment and Land Court allowed a late Defence in a land suit, choosing substantive justice over procedural technicality where no one was prejudiced.

What this practically means

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Executive summary

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This was a ruling on a notice of motion dated 21st November 2017 in which the Defendant, sued by Plaint claiming to be declared legal owners of Plot No. 1 Itunduimuni Market in Wamunyu location, sought leave to file its Defence, List of Documents, List of Witnesses and Witness Statement out of time and to have them deemed properly on record. The Defendant had been served with Summons to Enter Appearance on 4th August 2017 but did not enter appearance; the Plaintiffs' request for interlocutory judgment was refused by the Deputy Registrar on the ground that the claim was not liquidated. The Defendant attributed the delay to administrative bureaucracies within the relevant Ministry, asserting it had a defence raising triable issues and that the Plaintiffs would suffer no prejudice. The Plaintiffs opposed, alleging inordinate and unexplained delay and asserting prejudice from having applied and paid for judgment. The court applied Order 6 Rule 1 and Order 7 Rule 1 of the Civil Procedure Rules and relied on its own decision in the Sir Ali Bin Salim Primary School case and the Court of Appeal's decision in Salat, holding that striking out a pleading filed out of time is an extreme measure for the clearest of cases and that procedural lapses without prejudice should not defeat substantive justice. Because interlocutory judgment had been denied and no judgment existed, the Plaintiffs would suffer no prejudice. The court also held that the defendant's right to defend the suit meant the triable-issues question was premature. The application dated 21st November 2017 was allowed as prayed, with costs in the cause.

Key legal issues

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01

Leave to file Defence out of time

Holding

The court exercised its discretion in favour of the Defendant, holding that no prejudice would be suffered by the Plaintiffs since interlocutory judgment was refused and there is no judgment in the matter

Reasoning

The court found the Defendant was properly served but explained the delay by administrative bureaucracies in the Defendant's office. Since the request for interlocutory judgment was denied by the Deputy Registrar and the matter had not proceeded to judgment, the Plaintiffs would suffer no prejudice. The court invoked substantive justice over technicality, relying on the Salat decision of the Court of Appeal and its own prior decision, and allowed the Defence to be filed out of time.

p. 2
02

Whether the Defence raises triable issues

Holding

The issue does not arise at this stage since there is no judgment; the right to defend the suit prevails until a Defence is filed and served

Reasoning

The court held that because no judgment had been entered (interlocutory judgment having been denied since the claim was not liquidated), the question whether the draft Defence raises triable issues was premature. A defendant has a constitutional and statutory right to defend a suit, and plaintiffs may only contest triability after service of the Defence.

p. 2

Legal principles established

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  • Striking out a pleading filed out of time is an extreme measure resorted to only in the clearest of cases; procedural lapses not going to jurisdiction or causing prejudice should not attract invalidating consequences
  • There is no provision for entry of interlocutory judgment in land matters
  • A defendant has a constitutional and statutory right to defend a suit; triable issues can only be raised after the Defence is filed and served

Court orders

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  1. 1.The Application dated 21st November, 2017 is allowed as prayed
  2. 2.Leave granted to the Defendant to file its Defence, List of Documents, List of Witnesses and Witness Statement out of time, to be deemed properly on record
  3. 3.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 6 Rule 1
  • Civil Procedure RulesOrder 7 Rule 1

Cases cited (3)

  • Beatrice Wanjiru Kamuri vs. John Kibira Muiruri
    (2016) eKLR
  • Chairman, Secretary and Treasurer, School Management Committee of Sir Ali Bin Salim Primary School & Another Vs. Francis Bahati Diwani & 2 others
    (2014) eKLR
  • Nicholas Kiptoo Arap Korir Salat vs. Independent Electoral and Boundaries Commission & Others
    (2013) eKLR
Jurisdiction invoked
Inherent jurisdiction of the court and Civil Procedure Rules (Order 6 Rule 1; Order 7 Rule 1)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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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, "Joshua Mulungu Mutie & another v County Government of Machakos [2018] KEELC 1739 (KLR)", Case Analysis (2018). Application dated 21st November, 2017 (Plaint dated 26th July, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1739/eng@2018-09-28

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