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ELCAllowedNot stated (Kitale ELC matter)· [2019] KEELC 4688 (KLR)
Isaac Ngeywo v James Tuker Simatwa [2019] KEELC 4688 (KLR)
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·~3 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#This ruling by the Environment and Land Court at Kitale (Mwangi Njoroge, J) determines the defendant's application dated 19/9/2018 seeking leave to file and serve his list of witnesses, list of documents, statements and copies of documents out of time, or in the alternative, that the documents filed on 9/7/2018 and served on 10/7/2018 be deemed properly filed and served. The defendant attributed the delay to his advocates' inadvertence. The plaintiff opposed the application in a replying affidavit filed on 22/10/2018, describing it as devoid of merit, fatally defective, brought under the wrong provisions, and an attempt to delay the suit, noting the documents had been signed four and a half years earlier and that prior court orders had locked them out. Only the defendant filed submissions, citing a procurement judicial review decision. The court declined to condone the defendant's delay but observed that the plaintiff was equally blameworthy: his own delay had prompted suo motu orders under Order 17 Rule 2(1) of the Civil Procedure Rules requiring him to show cause, and a settlement intimation and counsel's illness had also occasioned adjournments. Emphasizing that real justice is dispensed on the basis of evidence and that courts should determine matters on their merits, the court held that regularization of the defendant's record would aid substantive justice and allowed the application, with costs, unusually, awarded to the plaintiff.
Key legal issues
#01
Whether the defendant's delay in filing documents could be excused
Holding
The court, while not condoning the delay, allowed the application because both parties contributed to the delay and regularization would aid substantive justice
Reasoning
The court observed that justice is dispensed on the basis of evidence and that a court should hear matters on their merits. It noted the plaintiff's own delay had previously attracted suo motu orders under Order 17 Rule 2(1), making both parties equally blameworthy. Discretion was therefore exercised in favour of admitting the defendant's documents despite non-compliance with timelines.
p. 1
Legal principles established
#- Courts should, where possible, determine matters on their merits and may exercise discretion to regularize a party's record where doing so aids substantive justice
Court orders
#- 1.The application dated 19/9/2018 is allowed
- 2.Costs to the plaintiff
- Jurisdiction invoked
- Inherent discretion under the Civil Procedure Rules, including Order 17 Rule 2(1) of the Civil Procedure Rules (referred to in the ruling)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Isaac Ngeywo v James Tuker Simatwa [2019] KEELC 4688 (KLR)", Case Analysis (2019). Not stated (Kitale ELC matter). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4688/eng@2019-02-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.