Flora Cherono v Mary Njihia & 9 others [2021] KEELC 1740 (KLR)
The bottom line
#A Kenyan court refused to strike out a late affidavit, ruling that objections to documents must be raised with prior notice, not sprung at the hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant's oral application to expunge the Respondent's Replying Affidavit had merits
The application lacked merit because the objection was raised without prior notice or protest at service, amounting to trial by ambush contrary to natural justice and fair hearing.
The court held that a party seeking expungement of a document must give advance notice - by protest at service, written notice, or application - before the hearing. None of these was done. Citing Bashir Haji Abdullahi v Adan Mohammed Nooru and Halsbury's Laws on audi alteram partem, the court found the oral application at hearing ambushed the Respondent, breaching fairness guaranteed by the Constitution.
Whether the Respondent satisfied the requirements for enlargement of time for compliance with the court's timelines
Yes - the delay of about 30 days in filing the Replying Affidavit occasioned no prejudice to the Applicant, and in the interest of substantive justice the Affidavit was deemed properly filed and served.
Applying the Supreme Court's approach in Njonjo Mue, the court asked whether the Applicant would suffer prejudice if the late filing were excused. Counsel for the Applicant did not demonstrate any prejudice; the Applicant would still have opportunity to respond by way of supplementary affidavit. Relying on Trust Bank v Amalo and Essanji v Solanki, and Article 159 of the Constitution, the court prioritized hearing the matter on its merits over the procedural lapse.
The court's approach to expunging documents from the record
Expunging a document is a drastic, painful measure comparable to striking out pleadings, which is a draconian step to be exercised sparingly and only in plain cases or where the default is deliberate and 'cancerous'.
The court likened expungement to striking out pleadings under Order 2 Rule 15 of the Civil Procedure Rules, noting that once filed, documents form part of the body of the case and should not be hastily severed. Citing Co-operative Merchant Bank v Wekesa, the court adopted the view that striking out is draconian and should only be resorted to in plain cases, and expungement similarly risks shutting a party out of its cause unless there is deliberate abuse of process.
Legal principles established
#- A party wishing to raise an objection to the validity or retention of a document on the court record must give prior notice to the opposing party; raising it orally at the hearing is trial by ambush contrary to natural justice.
- Expunging a document from the record is a severe step that shuts a party out of presenting its cause and should not be taken unless real prejudice is demonstrated.
- Where a document is filed out of time but no prejudice is shown to the opposing party, the court may deem it properly filed in the interest of hearing disputes on their merits.
Court orders
#- 1.The oral application to expunge the Respondent's Replying Affidavit dated 13th September, 2021 is dismissed
- 2.The Replying Affidavit is deemed properly filed and served
- 3.Costs of the oral application are awarded to the Respondent
- Jurisdiction invoked
- Article 159 of the Constitution of Kenya, 2010 (judicial discretion to excuse procedural technicalities)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Flora Cherono v Mary Njihia & 9 others [2021] KEELC 1740 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1740/eng@2021-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.