Solian Investments Limited v KSC Internatinal Limited In Receivership (formerly Known as Kundan Singh Construction Limited & 5 others [2019] KEELC 4918 (KLR)
The bottom line
#Kenya's High Court admitted a late-filed Defence but ordered the late party to pay Kshs 50,000 throw away costs within 14 days or lose it.
What this practically means
#Executive summary
#Key legal issues
#Whether a Defence filed out of time and without leave should be admitted
Admitted, subject to payment of throw away costs, in the interest of a fair hearing
The suit is a land claim to which the default judgment rules do not apply. Although the 1st Defendant gave only a weak explanation for the delay, the matter had not yet been heard, and the court held that depriving it of the right to plead would be unduly harsh. However, the Plaintiff, having fixed the matter for hearing while the Defendant had not filed pleadings, suffered real inconvenience, which is compensated through throw away costs with a default sanction of striking out.
Whether the Plaintiff suffered prejudice
Yes; the Plaintiff had prepared for the hearing fixed for 25th September 2018 and was inconvenienced
The Plaintiff fixed the hearing date at a time when the 1st Defendant had not filed pleadings. Filing of the Amended Defence days before the hearing date meant the Plaintiff had prepared for a hearing that could not proceed. The court found the claim of no prejudice untenable and addressed the prejudice through throw away costs.
Legal principles established
#- Striking out a late-filed pleading is a draconian remedy where the suit has yet to be heard and each party should be afforded an opportunity to plead its case
Court orders
#- 1.The Amended Defence filed on 3rd September 2018 is admitted
- 2.The 1st Defendant to pay throw away costs of Kshs 50,000/- to the Plaintiff within 14 days
- 3.If the costs are not paid within the prescribed time, the Amended Defence will stand struck out
- Jurisdiction invoked
- Inherent jurisdiction of the High Court to regulate its own procedure (Civil Procedure Rules, Order 10 and pleadings provisions); no specific provision cited
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Solian Investments Limited v KSC Internatinal Limited In Receivership (formerly Known as Kundan Singh Construction Limited & 5 others [2019] KEELC 4918 (KLR)", Case Analysis (2019). Notice of Motion dated 13th September 2018 (suit number not stated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4918/eng@2019-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.