Michael Kimani (Suing on his behalf and as Executor of the Estate of Mweya Karonga) v George Kimani Gitau (Sued on his behalf and in his capacity as the Administrator of the Estate of Gitau Karonga) [2021] KEELC 295 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the defendant made out a case for extension of time to file a defence despite a four-year delay and absence of reasonable excuse
The application was allowed. Although no reasonable excuse was given, the discretion was exercised in the defendant's favour because he had entered appearance and participated in interlocutory applications, showing an intention to defend, and the plaintiff's prejudice could be mitigated by re-opening his case.
The court accepted that the delay of four years was unexplained and inexcusable, but held that this alone did not fetter its discretion under Order 50 Rule 6. The defendant had entered appearance in 2016 and taken part in interlocutory applications, evidencing an intention to defend. Justice would be better served by hearing both parties, especially as some issues from a dispute dating to the 1990s remained unresolved after HCCC No. 2940 of 1992. The plaintiff had given evidence on a priority basis due to illness, and any prejudice could be cured by allowing him to re-open his case, recall the witness and call additional evidence, subject to thrown away costs.
Whether the plaintiff would suffer irreparable prejudice if leave were granted after he had testified and closed his case
No irreparable prejudice would be suffered, since the plaintiff may re-open his case and give further evidence in response to the defence.
The plaintiff had already given evidence and closed his case on the footing that the suit was undefended, but his evidence had been taken on a priority application due to his illness, and his advocate had then pointed out the absence of a defence. The court found the prejudice could be mitigated by permitting the plaintiff to re-open his case and respond to any new issues raised in the defence, making the grant of leave appropriate.
Legal principles established
#- The court has jurisdiction under Order 7 Rule 1 and Order 50 Rule 6 of the Civil Procedure Rules to extend time within which to file a defence, and that power is discretionary.
- Absence of a reasonable excuse for delay does not of itself fetter the court's discretion under Order 50 Rule 6; prejudice capable of mitigation, and the interest of a party being heard, may justify leave.
- Prejudice that can be remedied by allowing the other party to re-open its case is not a ground for refusing leave to file a defence out of time.
Court orders
#- 1.The defendant is granted leave to file a statement of defence within seven (7) days from the date hereof
- 2.The plaintiff shall be at liberty to file a reply to defence within fourteen (14) days from the date of service of the defence
- 3.The plaintiff shall be at liberty to open his case and to recall the witness who has given evidence for further examination and cross-examination and to call additional witnesses if necessary
- 4.The defendant shall pay thrown away costs assessed at Kshs.10,000/- forthwith and in any event within 30 days from the date hereof in default of which the plaintiff shall be at liberty to execute for the recovery thereof
- Jurisdiction invoked
- Order 36 Rule 7, Order 7 Rule 1 and Order 50 Rule 6 of the Civil Procedure Rules (leave to file defence out of time / extension of time)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Michael Kimani (Suing on his behalf and as Executor of the Estate of Mweya Karonga) v George Kimani Gitau (Sued on his behalf and in his capacity as the Administrator of the Estate of Gitau Karonga) [2021] KEELC 295 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/295/eng@2021-12-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.