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ELCAllowedNot stated in the judgment (Notice of Motion dated 21/7/2020)· [2021] KEELC 1550 (KLR)

Rocklink Limited v Paul Mbugua Gitau & another [2021] KEELC 1550 (KLR)

Environment and Land Court
7 October 2021
JKJ. G. Kemei
1,881 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court let a landlord file its defence six years late because every party deserves a hearing before judgment.

What this practically means

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Executive summary

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The Plaintiff, which had sued the Defendants for breach of a lease of two Juja parcels used for quarrying, withdrew its suit on 14/7/2020. The Defendants persisted with a counterclaim seeking a declaration that the lease was lawfully terminated, eviction, and rent arrears of Kshs. 1,359,602/-. The Plaintiff then moved the Court by Notice of Motion dated 21/7/2020 under Order 51 Rule 1 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act and Article 159 of the Constitution, seeking leave to file a reply to defence and defence to counterclaim out of time, and that the draft pleadings be deemed filed and served. The Defendants opposed, arguing pleadings closed in June 2015, the delay of over five years was unexplained, and judgment on the counterclaim should be entered. The Court identified a single issue: whether to extend time to file a defence to the counterclaim. Relying on Section 95 of the Civil Procedure Act and Order 50 Rule 6, and restating the Salat extension-of-time principles, the Court held that although the delay of over six years was inordinate and unsatisfactorily explained, the right to be heard is a constitutional tenet and the hearing had not commenced, so the discretion should favour the applicant. The application was allowed as prayed, with costs to the Defendants/Respondents.

Key legal issues

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01

Whether the Court should enlarge time for filing a defence to counterclaim despite inordinate delay of over six years

Holding

Yes. Although the delay was inordinate and unexplained, the Court exercised its discretion in favour of the applicant because the suit had not been heard and the right to be heard is a constitutional tenet.

Reasoning

The Court's power to enlarge time derives from Section 95 of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules. The Court considers indolence, abuse of process, prejudice to either party, and whether enlargement is necessary for complete adjudication. The applicant's explanation - that counsel intended to address all issues at the hearing - was unsatisfactory and the delay of almost six years appeared an afterthought. However, since the hearing had not commenced, allowing the application afforded the parties their day in court and permitted triable issues to be determined on merit.

p. 3

Legal principles established

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  • Extension of time is an equitable discretionary remedy available to a deserving party who explains the delay.
  • Denial of enlargement of time should not deprive a party of the right to be heard where hearing has not commenced.
  • Where a defence raises triable issues, the Court should exercise its inherent jurisdiction to allow it to proceed to trial.

Court orders

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  1. 1.Leave granted to the Plaintiff to file a reply to defence and defence to counterclaim
  2. 2.The Reply to defence and defence to counterclaim deemed duly filed and served upon the Respondents
  3. 3.Costs of the application awarded to the Defendants/Respondents

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 95
  • Civil Procedure RulesOrder 51 Rule 1; Order 50 Rule 6; Order 2 Rule 13
  • Constitution of KenyaArticle 159

Cases cited (4)

  • Patel v E.A Cargo Handling Services Ltd
    [1974] EA 75
  • Sebei District Administration V Gasyali & others
    (1968) EA 300
  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others
    (2013) eKLR
  • Vishva Stone Suppliers Company Limited v RSR Stone [2006] Limited
    [2020] eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 51 Rule 1 of the Civil Procedure Rules; Section 95 of the Civil Procedure Act; Order 50 Rule 6 of the Civil Procedure Rules; Article 159 of the Constitution

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, "Rocklink Limited v Paul Mbugua Gitau & another [2021] KEELC 1550 (KLR)", Case Analysis (2021). Not stated in the judgment (Notice of Motion dated 21/7/2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1550/eng@2021-10-07

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