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ELCPartially AllowedNot stated in the extract· [2020] KEELC 720 (KLR)

Ngumbau Investments Limited t/a Courtyard Hotel v Kitele Investments Limited and Administrators of Estate of Laban Maingi Kitele; Kindest Auctioneers (Interested Party) [2020] KEELC 720 (KLR)

Environment and Land Court of Kenya
6 November 2020
1,182 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court allowed defendants to file their defence late, ruling counsel's mistake shouldn't deny anyone a fair hearing.

What this practically means

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Executive summary

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The Defendants/Applicants moved the Environment and Land Court at Machakos by Notice of Motion dated 19th April, 2019 seeking leave to file a Defence and Counter-claim out of time in a suit commenced by Plaint dated 5th February, 2018, in which the Plaintiff claimed proprietary interest arising from renovations and had requested judgment after the Defendants failed to file a Defence. The Defendants, through their current advocates Bashir, Noor & Company Advocates, explained that former counsel responded only to the interlocutory application and neglected the main suit, urging that the mistake of counsel should not be visited on innocent parties and that the draft Defence raised triable issues, including counterclaims for rent arrears and mesne profits. The application was unopposed in fact but resisted in submissions by the Plaintiff, who contended the Defendants and their new advocates had long been aware of the suit and had been indolent. The Defendants relied on Article 50 of the Constitution and on Joshua Mulungu Mutie and Job Kilach on the right to be heard and what constitutes a bona fide triable issue. The court found the Defendants had always been represented and had instructed counsel timeously, so the failure to file a Defence was a bona fide mistake of counsel; no prejudice to the Plaintiff was demonstrated; and refusal would infringe the Defendants' right to be heard. Relying on Order 50 Rule 6 notwithstanding the fourteen-day rule in Order 7 Rule 1, the court allowed the application, granting leave to file the Defence and Counter-claim within fourteen days, with each party bearing their own costs.

Key legal issues

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01

Whether to enlarge time for filing of Defence where the defendant was represented throughout but counsel failed to file a Defence

Holding

Leave granted; the failure was a bona fide mistake by counsel which should not be visited on the innocent Defendants, and no prejudice to the Plaintiff was demonstrated.

Reasoning

The record showed the Defendants had always been represented by an advocate and had instructed the former advocate timeously. Although Order 7 Rule 1 requires a Defence within fourteen days of service, Order 50 Rule 6 permits enlargement of time as justice requires. The Plaintiff did not identify any prejudice it would suffer, whereas refusal would infringe the Defendants' constitutional right to be heard.

p. 2
02

Statutory framework for extension of time

Holding

Order 50 Rule 6 empowers the court to enlarge time for filing a Defence as the justice of the case requires, notwithstanding the fourteen-day rule in Order 7 Rule 1.

Reasoning

The court acknowledged the default timeline in Order 7 Rule 1 of the Civil Procedure Rules but held that the discretionary power under Order 50 Rule 6 allows the court to enlarge time where justice demands. The discretion was exercised in favour of the Defendants because they were continuously represented, the mistake was counsel's, and the draft Defence raised triable issues warranting trial.

p. 2

Legal principles established

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  • A bona fide triable issue is any matter raised by the defendant that would require further interrogation by the court during a full trial; it need not be an issue that would succeed.
  • The right to be heard under Article 50 will be infringed unless a defendant who has been let down by counsel is allowed to file a Defence out of time where no prejudice is shown.

Court orders

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  1. 1.The Defendants be and are hereby granted leave to file their Defence and Counter-claim out of time
  2. 2.The said Defence and Counter-claim to be filed and served within fourteen (14) days of the date of the Ruling
  3. 3.Each party to bear his own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Article 40
  • Civil Procedure Rules, 2010Order 7 Rule 1
  • Civil Procedure Rules, 2010Order 10 Rule 4(1)(2)
  • Civil Procedure Rules, 2010Order 50 Rule 6

Cases cited (2)

  • Joshua Mulungu Mutie & another vs. County Government of Machakos
    [2018] eKLR
  • Job Kilach vs. Nation Media Group Ltd, Salaba Agencies Ltd & Michael Rono
    [2015] eKLR
Jurisdiction invoked
Inherent and case-management powers under the Civil Procedure Rules, 2010 (Order 50 Rule 6 - enlargement of time); Article 50 of the Constitution (right to fair hearing) invoked

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, "Ngumbau Investments Limited t/a Courtyard Hotel v Kitele Investments Limited and Administrators of Estate of Laban Maingi Kitele; Kindest Auctioneers (Interested Party) [2020] KEELC 720 (KLR)", Case Analysis (2020). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/720/eng@2020-11-06

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