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ELCDismissedNot stated in judgment· [2019] KEELC 3657 (KLR)

Benjamin Kipkulei v Shadrack Kamaamia & 7 others [2019] KEELC 3657 (KLR)

Environment and Land Court
30 April 2019
DOD. O. Ohungo
2,085 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Nakuru refused to let late-filing defendants submit a defence two years after the deadline, without explaining the delay.

What this practically means

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Executive summary

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By Notice of Motion dated 13th February 2018, the defendants sought enlargement of time to file a defence out of time, deeming of their defence dated 14th February 2018 as properly filed and served, and a rehearing of the suit as a defended suit. The application was supported by an affidavit of the 1st defendant, who attributed the failure to file a defence to inadvertence of counsel. The plaintiff opposed, noting that appearance was entered on 22nd December 2015, that the defence was due by 15th January 2016, that the court had on 9th November 2016 given the defendants 30 days to file a defence, and that a similar application had already been dealt with in a ruling delivered on 12th October 2017. The court, applying Order 50 rule 6 of the Civil Procedure Rules and the factors restated by the Court of Appeal in Charles Karanja Kiiru v Charles Githinji Muigwa, found that the defendants ought to have filed their defence by 28th January 2016, so that by 13th February 2018 there had been an inordinate delay of over two years with no explanation offered. What was annexed was only a draft defence. The alleged mistake of counsel was neither identified nor explained and was dismissed as an afterthought. The court further held that the request for a rehearing was res judicata, having been heard and determined in the ruling of 12th October 2017. Granting the application would cause grave injustice to a plaintiff whose case had been heard and was pending judgment. The Notice of Motion was dismissed with costs to the plaintiff. The judge regretted the delay in delivering the ruling occasioned by medical leave.

Key legal issues

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01

Whether time should be enlarged for filing of defence

Holding

Application refused for inordinate, unexplained delay of over two years

Reasoning

The defendants entered appearance on 23rd December 2015 and under Order 7 rule 1 ought to have filed their defence within fourteen days; accounting for Order 50 rule 4 they ought to have filed by 28th January 2016. The application of 13th February 2018 came after a delay of over 2 years. No explanation for the delay was given, and what was annexed was only a draft defence, not a filed one. The alleged mistake of counsel was not identified or explained and was an afterthought.

p. 3
02

Whether a rehearing should be ordered

Holding

Refused as res judicata

Reasoning

The defendants had earlier moved the court by Notice of Motion dated 24th July 2017 seeking, inter alia, setting aside of the proceedings; that application was dismissed in a ruling delivered on 12th October 2017 which addressed the same issues. The court therefore could not reopen the question of a rehearing. Granting the application would also cause grave injustice to a plaintiff who had dutifully complied with the rules and whose case was on the verge of conclusion.

p. 3

Legal principles established

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  • In applications for enlargement of time the court considers the period of delay, reasons for the delay, prejudice to the respondent, and consonance with the overriding objective
  • An issue already heard and determined in a prior ruling cannot be reopened - it is res judicata
  • Parties have a duty to assist the court attain the overriding objective of civil litigation

Court orders

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  1. 1.The Notice of Motion dated 13th February 2018 is dismissed with costs to the plaintiff

Authorities

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Legislation

  • Civil Procedure RulesOrder 50 rule 6
  • Civil Procedure RulesOrder 7 rule 1
  • Civil Procedure RulesOrder 50 rule 4
  • Civil Procedure RulesOrder 11

Cases cited (2)

  • Charles Karanja Kiiru v Charles Githinji Muigwa
    [2017] eKLR
  • Edith Gichugu Koine vs. Stephen Njagi Thoithi
    [2014] eKLR
Jurisdiction invoked
Order 50 rule 6 of the Civil Procedure Rules (power to enlarge time)

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, "Benjamin Kipkulei v Shadrack Kamaamia & 7 others [2019] KEELC 3657 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3657/eng@2019-04-30

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