Alloys Odhiambo Dulo & 4 others v Peter Osore & 4 others [2019] KEELC 856 (KLR)
The bottom line
#A Kenyan court refused to let a defendant file his defence six years late, even though he had participated in the case.
What this practically means
#Executive summary
#Key legal issues
#Whether the application to file defence out of time was merited
The application was devoid of merits and dismissed in its entirety
The applicant was served with summons on 19th December 2013, appeared and participated in court proceedings on 22nd January 2014 and 9th July 2015, and was served with hearing notices in 2017 and 2018. His delay of close to six years in seeking leave to file a defence was deliberate, inordinate and inexcusable. Authorities cited show equitable relief is unavailable in cases of unreasonable delay, and the Supreme Court has disallowed extension sought after inordinate delay.
Whether the applicant's right to fair hearing warranted the indulgence sought
Fair hearing rights had already been respected through service and participation
Article 50(1) guarantees fair hearing, but the record showed affidavits of service by licensed process servers, the applicant's presence when an application was withdrawn, and his cross-examination of PW2. Having been given several chances and having participated, his constitutional rights to fair hearing and access to justice were satisfied, so no further indulgence was justified.
Whether citation of a non-existent provision (Order 15 Rule 11) doomed the application
The erroneous provision was a curable technicality
The court observed that Order 15 Rule 11 cited by the applicant does not exist, but treated the mistake as curable under section 3 of the Environment and Land Court Act, the Gatu v Muriuki decision, and Article 159(2)(d) on administration of justice without undue regard to technicalities. The dismissal rested on delay and merits, not on the defective citation.
Legal principles established
#- A party duly served on several occasions who delays inordinately before seeking to file a defence cannot invoke the right to fair hearing to obtain leave out of time
- An erroneously cited non-existent procedural provision may be cured under Article 159(2)(d) of the Constitution as a mere technicality
Court orders
#- 1.The application dated 24th October 2018 and filed on 29th October 2018 by the 2nd defendant/applicant is dismissed in its entirety
- 2.Costs of the application be in the cause
- Jurisdiction invoked
- Section 3A of the Civil Procedure Act (Cap 21) and Article 159(2)(d) of the Constitution of Kenya, 2010; inherent jurisdiction of the Environment and Land Court under section 3 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Alloys Odhiambo Dulo & 4 others v Peter Osore & 4 others [2019] KEELC 856 (KLR)", Case Analysis (2019). Not stated in judgment (suit file number omitted). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/856/eng@2019-10-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.