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ELCPartially AllowedNot stated in the excerpt· [2018] KEELC 3008 (KLR)

Ramokia Housing Co-operative Society Limited v George Kuria Mwaura & 2 others [2018] KEELC 3008 (KLR)

Environment and Land Court
31 May 2018
KBK. BOR
398 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court allowed defendants to file their defence and counterclaim late, ruling that no real prejudice arises while the main case remains unheared.

What this practically means

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Executive summary

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This is an interlocutory ruling by the Environment and Land Court at Nairobi (K. Bor, Judge) delivered on 31 May 2018. The 1st and 2nd Defendants sought leave to file their defence together with a counterclaim, and to have the draft Defence and Counterclaim attached to their application dated 18 April 2018 deemed properly filed upon payment of requisite court charges. They argued that since the suit had not been heard, the Plaintiff would suffer no prejudice, whereas they stood to suffer great prejudice if the suit proceeded to full trial without their defence and counterclaim, particularly as they denied being administrators of the estate of the late Kahuhu Kuogothoka and faulted the Plaintiff for leaving out the legal administrators. The Plaintiff opposed the application through the Replying Affidavit of John Osoro filed 11 May 2018, contending that the application was intended to delay the hearing, which was fixed for 3 July 2018, and that most issues had been dealt with in the court's ruling of 14 December 2017. The court noted the Applicants had interchanged the parties in their application but proceeded to determine the matter on its merits. Relying on its earlier ruling that the Defendants held a power of attorney over the suit land, and observing that the 2nd Defendant is the deceased's son and thus the right person to give details of the estate's administration, the court granted the Defendants leave to file and serve their defence and counterclaim within 7 days, with costs of the application to the Defendants' account.

Key legal issues

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01

Whether leave to file defence and counterclaim should be granted at a late stage

Holding

Leave was granted, the court finding no prejudice to the Plaintiff since the suit had not been heard, and that the Defendants stood to suffer great prejudice if denied

Reasoning

The court observed that the suit was yet to be heard (fixed for 3/7/2018), so allowing the defence and counterclaim would not delay the trial unfairly. The Defendants' draft defence and counterclaim would be filed within a defined period of 7 days, and costs of the application were awarded to the Plaintiff to compensate for the late application.

p. 1
02

Whether the 1st and 2nd Defendants were the proper parties regarding administration of the estate of Kahuhu Kuogothoka

Holding

The court noted the Defendants had been appointed attorneys over the suit land and that the 2nd Defendant, being the son of the deceased, was the right person to supply details of the administrators

Reasoning

The court reviewed its earlier ruling of 14/12/2017 which recorded that the 1st and 2nd Defendants were appointed attorneys over the suit land by way of power of attorney. It observed the 2nd Defendant's familial relationship with the deceased meant he could supply the Plaintiff with information on the estate's administration, implying joinder of the Defendants was not fundamentally defective.

p. 1

Legal principles established

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  • Leave to file a defence and counterclaim may be granted before a suit proceeds to full trial where no prejudice is shown to the opposing party

Court orders

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  1. 1.The 1st and 2nd Defendants are granted leave to file and serve their defence and counterclaim within 7 days
  2. 2.The 1st and 2nd Defendants to bear the costs of the application
Jurisdiction invoked
Original civil suit jurisdiction of the Environment and Land Court (provision 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, "Ramokia Housing Co-operative Society Limited v George Kuria Mwaura & 2 others [2018] KEELC 3008 (KLR)", Case Analysis (2018). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3008/eng@2018-05-31

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