Lois Wairimu Magua v Henry Keter Chepsengeny & 7 others [2018] KEELC 4711 (KLR)
The bottom line
#A Kenyan land court reinstated a struck-out defence, but only after the defaulting party agreed to pay all fines and costs and file documents within 14 days.
What this practically means
#Executive summary
#Key legal issues
#Power to strike out pleadings for non-compliance with pre-trial directions
The court, under paragraph 28(b) of the ELC Practice Directions in addition to Order 11 CPR 2010, has discretion to strike out pleadings and impose costs or sanctions for non-compliance with pre-trial directions and timelines
Paragraph 28(b) of Gazette No. 5178 expressly permits orders striking out pleadings and imposing costs or similar sanctions for non-compliance with pre-trial directions. The court observed that litigants habitually seek adjournments and more time, and held that courts should firmly sanction tardy and recalcitrant parties, including striking out pleadings in extreme cases, since a litigant with no regard for court orders has no business in court.
Whether mistake of counsel justified reinstatement
Although the explanation (counsel's failure to diarize the mention date and delayed remittance of funds) fell short of the test of reasonability, the court in its discretion allowed reinstatement subject to strict conditions and payment of costs
Counsel was present when the orders were made and had a duty to inform his client and ensure compliance. The explanations were unpersuasive and counsel himself conceded they might fall short of reasonability. Nevertheless, in the exercise of discretion, and in the interest of having the suit determined on merit, the court reinstated the pleadings but conditioned reinstatement on full payment of fines and costs and filing of documents within 14 days, failing which the striking-out orders would stand.
Legal principles established
#- The court has power to strike out pleadings and impose costs or similar sanctions for non-compliance with pre-trial directions
- It is incumbent upon every litigant to strictly comply with pre-trial directions and timelines
Court orders
#- 1.The application dated 23 November 2017 is allowed
- 2.The defence, list of documents and other documents of the 5th defendant struck out on 22 November 2017 are reinstated
- 3.The 5th defendant must fully comply with the order on payment of costs and fines and file all its documents within 14 days
- 4.The 5th defendant to pay costs of the application assessed at Kshs. 5,000/=, payable within 14 days
- 5.Should there be any non-compliance, the orders striking out the pleadings and documents of the 5th defendant made on 22 November 2017 will stand
- Jurisdiction invoked
- Paragraph 28 of Gazette No. 5178 – Practice Directions on Proceedings in the Environment and Land Courts, in addition to Order 11 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lois Wairimu Magua v Henry Keter Chepsengeny & 7 others [2018] KEELC 4711 (KLR)", Case Analysis (2018). Not stated in the excerpt (ELC suit at Nakuru; application dated 23 November 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4711/eng@2018-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.