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ELCAllowedNot stated in the excerpt· [2019] KEELC 4554 (KLR)
Titus Mutunga Maweu v Erastus Mualuko Sivalu & 2 others [2019] KEELC 4554 (KLR)
Environment and Land Court (as indicated by station; judgment text does not name the court)
19 February 2019
617 words in judgment
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·~2 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#This is an interlocutory ruling by Mbogo C.G, J at Makueni on a notice of motion dated 7th May 2018 by the 2nd and 3rd Defendants. They sought leave to file their memorandum of appearance and defence out of time, and an order that the annexed draft appearance, defence and replying affidavits to the notice of motion dated 4th October 2017 be deemed filed, with costs in the cause. The application was supported by the affidavit of Ann Nzula Sivalu, who deposed that the defence raises triable issues and that the Plaintiff would suffer no prejudice. The Plaintiff, through counsel Justus M. Mutia, opposed the application as misplaced and an abuse of process, pointing out that no request for judgment had been made and the pre-trial conference was yet to be done. Only the Defendants' counsel filed submissions, relying on Stephen Wanyoike Kinuthia v Cecilia Wambui Kariuki [2017] eKLR, where Okong'o J held that far-reaching reliefs justify giving defendants an opportunity to defend absent prejudice not compensable in costs. The court concurred with that reasoning, noted the permanent injunction sought against the Defendants' entry into and use of the suit property, and allowed the application. The Defendants were directed to file and serve their defence, documents, witness statements and replying affidavits within 21 days, with costs of the application to the Plaintiff.
Key legal issues
#01
Leave to file defence out of time
Holding
The application has merit; defendants are to be allowed to file their defence and related documents within 21 days
Reasoning
The applicants deposed that they have a good defence raising triable issues and a comprehensive replying affidavit to the pending notice of motion. Counsel relied on Stephen Wanyoike Kinuthia v Cecilia Wambui Kariuki, where Okong'o J held that far-reaching reliefs warrant an opportunity to defend absent irreparable prejudice. The plaintiff did not demonstrate any prejudice that could not be compensated in costs, so the court concurred with that reasoning and allowed the application.
p. 2
Legal principles established
#- Where reliefs sought would have far-reaching consequences on defendants' livelihood, they should be given an opportunity to defend absent prejudice not compensable in costs
Court orders
#- 1.The 2nd and 3rd Defendants/Applicants granted leave to file and serve their statement of defence, bundle of documents and witnesses statements, and replying affidavits to the notice of motion dated 4th October 2017, within 21 days
- 2.Costs of the application to the Plaintiff/Respondent
- Jurisdiction invoked
- Not expressly stated; civil procedure jurisdiction to enlarge time and deem documents filed
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Titus Mutunga Maweu v Erastus Mualuko Sivalu & 2 others [2019] KEELC 4554 (KLR)", Case Analysis (2019). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4554/eng@2019-02-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.