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ELCStruck Out· [2020] KEELC 3579 (KLR)

Amit Aggarwal v National Bank of Kenya Ltd [2020] KEELC 3579 (KLR)

Environment and Land Court
10 February 2020
MNMwangi Njoroge
1,839 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This ruling by Mwangi Njoroge J at Kitale deals with the defendant's application dated 17/9/2019 seeking leave to file a defence, counterclaim, witness statements and documents out of time in a suit filed on 14/12/2015. The defendant, represented throughout by Gumbo and Associates Advocates, attributed the failure to file a defence to inadvertence and to the departure of Mr. Henry Kenei Advocate from the firm without proper handover. The plaintiff opposed, citing the defendant's four years of inactivity despite detailed participation in interlocutory applications, the lack of any convincing explanation for the delay, laches, and the absence of an exhibited draft defence. The court identified the decisive issue as whether the draft defence and counterclaim and supporting documents were exhibited. It found that the supporting affidavit of Linus Cheruiyot referred to a defence said to have been filed but annexed no such documents, and that documents lodged on 18/9/2019 were out of time and filed without leave. The court held that a document filed without leave is irregularly on the record and liable to be expunged. Concluding that the application was fatally defective for failure to exhibit the material pleadings, the court struck out the application with costs to the respondent. The underlying suit remains pending for hearing. Numerous authorities were cited by both parties but none was adopted by the court beyond its own reasoning on the exhibit requirement.

Key legal issues

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01

Whether leave should be granted to file defence and counterclaim out of time

Holding

The application was struck out as fatally defective for failure to exhibit the proposed defence and counterclaim

Reasoning

The court found the supporting affidavit of Linus Cheruiyot did not annex the draft defence and counterclaim it referred to. The most effective proof of a fact by affidavit is annexure of the document referred to. Documents lodged on 18/9/2019 were out of time and filed without leave, and could not be assumed to be those referred to in the affidavit. The defect disposed of the application without need to consider other merits.

p. 2
02

Effect of filing pleadings without leave of court

Holding

Such documents are irregularly on the record and may be expunged by the court on its own motion

Reasoning

The bundle filed on 18/9/2019, which included documents beyond the defence and counterclaim, was lodged without leave and out of time. The court held that a party or the court may expunge such irregular documents, a point raised through the plaintiff's reliance on the Salat authorities.

p. 2

Legal principles established

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  • A document filed without leave of court is irregularly on the record and liable to be expunged on a party's application or the court's own motion
  • An application seeking leave to file a defence must exhibit the draft defence and supporting documents; failure to do so is fatal

Court orders

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  1. 1.The application dated 17/9/2019 is struck out
  2. 2.Costs of the application to the respondent (plaintiff)

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 7
  • Civil Procedure Rules 2010Order 7 rule 1
  • Civil Procedure Rules 2010Order 50 Rule 6 (and rule 5 as invoked by the defendant)
  • Civil Procedure Rules 2010Order 51
  • Civil Procedure ActSections 1A and 3A
  • Constitution of KenyaArticle 50
  • Constitution of KenyaArticle 159 (including 159(2)(d))

Cases cited (11)

  • Nicholas Kiptoo arap Korir Salat -vs- Independent Electoral and Boundaries Commission & Others
    [2012] eKLR
  • Management Committee of Makondo Primary School & Another -vs- Uganda National Examination Board
    HC Misc. Appl. No. 18 of 2010
  • Republic -vs- Commission on Administrative Justice Ex-parte Stephen Gathuita Mwangi
    [2017] eKLR
  • Joshua Mulungu Mutie & another -vs- County government of Machakos
    [2018] eKLR
  • Joseph Ouma Oditi -vs- Jane Kisaka Mung'ao
    [2018] eKLR
  • Utalii Transport Company Ltd & 3 Others -vs- NIC Bank Ltd & Another
    [2014] eKLR
  • Wachira Karani -vs- Bildad Wachira
    [2016] eKLR
  • Cecilia Karuru Ngaiyu -vs- Barclays Bank of Kenya & Another
    [2016] eKLR
  • Charles Karanja Kiiru -vs- Charles Githinji Muigwa
    [2017] eKLR
  • Benjamin Kipkulei -vs- Shadrack Kamamia & 7 Others
    [2019] eKLR
  • Nicholas Arap Korir Salat vs- Independent Electoral and Boundary Commission & 7 Others
    [2014] eKLR
Jurisdiction invoked
Civil Procedure Act (Sections 1A and 3A) and Civil Procedure Rules (Orders 7, 50 rule 6, 51), Articles 50 and 159 of the Constitution of Kenya

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, "Amit Aggarwal v National Bank of Kenya Ltd [2020] KEELC 3579 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3579/eng@2020-02-10

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