Joseph Ndungu Njoroge v Geoffrey Giteru Gitau & 4 others [2019] KEELC 3016 (KLR)
The bottom line
#Kenya's High Court ruled a defence filed within time once Sundays are excluded, and courts won't punish litigants for their lawyer's clerk's delay.
What this practically means
#Executive summary
#Key legal issues
#Computation of the 30 days for filing the defence
Once Sundays are excluded under Order 50 Rule 2, the defence filed on 19th October 2017 (directions given 15th September 2017) was not filed out of time
The court applied Order 50 Rule 2, which excludes Sundays from computation of time. Counting from 15th September 2017 and excluding Sundays, 30 days had not expired by 19th October 2017 when the Statement of Defence was filed. Hence the defence was within time and no extension was strictly necessary.
Whether the short delay was excusable and whether the defence should be deemed filed
Yes – the delay of 3-4 days was explained, the defence raised triable issues, and the Respondent would suffer no irreparable damage
Even if out of time, a delay of 3-4 days required explanation, which the Applicants gave (the clerk's late arrival). The court held the clerk's laxity should not be visited on the litigants. The defence raised triable issues, and Article 159(2) requires justice without undue regard to procedural technicalities. No irreparable prejudice to the Respondent was shown.
Effect of the Plaintiff's withdrawal of his striking-out application
By abandoning the application dated 31st October 2017 seeking to strike out the defence, the Plaintiff abandoned the prayer to strike out the defence for late filing
The Plaintiff had moved to strike out the defence for being filed outside the stipulated period, but on 15th February 2018 applied to abandon that application and prepare the main suit for hearing. The court held that the striking-out prayer was thereby abandoned, and the 1st and 5th Defendants proceeded with the instant application 'out of abundance of caution'.
Legal principles established
#- Sundays are excluded in computing time under Order 50 Rule 2 of the Civil Procedure Rules
- Any delay, however short, requires a legitimate explanation to the satisfaction of the court
- A litigant should not be penalised for the laxity of their advocate's clerk where a bona fide defence raising triable issues exists
- The court has an unfettered discretion to extend time, exercised judicially, taking into account whether the defence raises triable issues
Court orders
#- 1.Prayer 2 granted: the defence, witness statements and list of documents filed out of time deemed duly filed and served
- 2.Costs of the application to be in the cause
- Jurisdiction invoked
- Article 159(2)(a)(d) of the Constitution; Order 50 Rules 2 and 6 and Order 51 Rule 1 of the Civil Procedure Rules 2010; Sections 1A, 1B and 3A of the Civil Procedure Act, Cap 21
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Ndungu Njoroge v Geoffrey Giteru Gitau & 4 others [2019] KEELC 3016 (KLR)", Case Analysis (2019). not_stated_in_judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3016/eng@2019-05-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.