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ELCAllowedPMCC No. 197 of 2014 (Appeal)· [2019] KEELC 935 (KLR)

Julius Kiambati Mbura v Benard Kirimi Thirunga & 2 others [2019] KEELC 935 (KLR)

Environment and Land Court
7 November 2019
1,808 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court reinstated a late-filed defence, confirming that striking out pleadings is a last resort—late filing can be forgiven, but it costs you.

What this practically means

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Executive summary

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The plaintiff sued in PMCC No. 197 of 2014 seeking a declaration that parcel L.R. No. Uringu II Adjudication Section/5682 was his property and that its transfer and consolidation with L.R. No. Uringu II Adjudication Section 5667 was wrongful and should be reversed. He also sought orders restraining registration of the land and obtained a restriction ex-parte. At the inter-partes hearing, the plaintiff raised a preliminary objection seeking the expungement of the 1st defendant's replying affidavit and statement of defence, both filed out of the prescribed time and without leave. On 7th April 2015 the trial magistrate found the replying affidavit properly on record but struck out the defence for breach of Order 7 Rule 1 of the Civil Procedure Rules, it having been filed 20 days late without leave. The 1st defendant appealed on grounds that striking out the defence occasioned a miscarriage of justice and offended natural justice and Article 159 of the Constitution. On appeal, Lucy N. Mbugua, ELC Judge, accepted that the defence was filed out of time and without leave and that registry acceptance did not validate it, but held that striking out a pleading is a draconian measure to be employed sparingly in furtherance of the overriding objective and the audi alteram partem maxim. The defence raised triable issues and the trial magistrate had not analysed the prejudice to the plaintiff. The court set aside the trial court's orders, reinstated the defence as properly on record, awarded the appeal costs to the appellant, and remitted the lower court file to the trial court for determination.

Key legal issues

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01

Whether a defence filed out of time and without leave must be struck out

Holding

The defence was filed late (20 days beyond the deadline) and without leave, but striking out is a draconian remedy to be exercised sparingly in furtherance of substantive justice

Reasoning

Order 7 Rule 1 requires a defence within 14 days of appearance unless the court orders otherwise. The appellant filed 20 days late without leave, so the trial magistrate did not err in finding a breach. However, striking out a pleading is a draconian measure to be employed sparingly; the court must heed the overriding objective and the audi alteram partem maxim, and the defence raised triable issues with no analysis of prejudice to the plaintiff.

p. 3
02

Whether Article 159 of the Constitution and the overriding objective could excuse non-compliance with procedural timelines

Holding

Article 159 and the overriding objective favour saving proceedings where the lapse causes no fundamental prejudice, and natural justice requires that no person be condemned unheard

Reasoning

The court accepted the principle from Microsoft Corporation v Mitsumi Computer Garage Ltd that procedural deviations not going to jurisdiction or causing fundamental prejudice ought not to nullify proceedings. The trial magistrate never analysed the prejudice the plaintiff would suffer if the defence were admitted, and the defence raised triable issues, so the appeal was allowed subject to costs.

p. 3

Legal principles established

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  • Striking out a pleading is a draconian measure to be employed sparingly and the court must heed the overriding objective to do substantive justice.
  • A defendant who files a defence out of the prescribed 14 days must seek leave of the court; payment and filing at the registry do not validate an out-of-time document.
  • The first appellate court must revisit the evidence on record, evaluate it and reach its own conclusion.

Court orders

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  1. 1.The Orders of the trial Magistrate dated 7th April 2015 be and are hereby set aside
  2. 2.The defence dated 11th February 2015 and filed on 12th February 2015 is hereby reinstated and is deemed to be properly on record
  3. 3.The Appellant is to pay the costs of this suit (the appeal)
  4. 4.A copy of this Judgment is to be placed in the lower court file and thereafter, the lower court file is to be severed from this file and is to be remitted back to the trial court for determination of the matter

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Civil Procedure ActSections 1A and 1B
  • Civil Procedure RulesOrder 51 Rule 14(2)
  • Civil Procedure RulesOrder 7 Rule 1
  • Civil Procedure RulesOrder 2 Rule 15

Cases cited (11)

  • Selle & Ano. vs. Associated Motor Boat Co. Ltd
    (1968) EA 123
  • Microsoft Corporation v Mitsumi Computer Garage Ltd & Another
    [2001] eKLR
  • Harrison Wanjohi Wambugu vs Felista Wairimu Chege & Another
    (2013) eKLR
  • Richard Ncharpi Leiyagu vs Independent Electoral Boundaries Commission & 2 others
    (2013) eKLR
  • Beldina Murai & 9 others vs Amos Wainaina
    (1979) eKLR
  • Patriotic Guards Ltd vs James Kipchirchir Sambu
    (2018) eKLR
  • Boniface Mutinda Kabaka v David Mutua Kamonde & 51 Others
    [2018] eKLR
  • Nelius Wanjiru v Kenya Broadcasting Corporation & Another
    [2019] eKLR
  • Ramji Devji Vekaria Vs Joseph Oyula
    Eldoret Civil Appeal (Application) no. 154 of 2010
  • Dishon Ochieng vs SDA church Kodiaga
    Civil appeal (application) no. 333 of 2010
  • Mukenya Ndunda vs Crater Automobiles Limited
    (2015) eKLR
On appeal from
Magistrates' Court (Meru)
PMCC No. 197 of 2014
Jurisdiction invoked
First appellate jurisdiction over appeals from the subordinate court in land matters

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, "Julius Kiambati Mbura v Benard Kirimi Thirunga & 2 others [2019] KEELC 935 (KLR)", Case Analysis (2019). PMCC No. 197 of 2014 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/935/eng@2019-11-07

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