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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether to enlarge time for filing of Defence where the defendant was represented throughout but counsel failed to file a Defence
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.
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.
Statutory framework for extension of time
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.
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.
Legal principles established
#- 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
#- 1.The Defendants be and are hereby granted leave to file their Defence and Counter-claim out of time
- 2.The said Defence and Counter-claim to be filed and served within fourteen (14) days of the date of the Ruling
- 3.Each party to bear his own costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.