Eliud Kibitok Keter & 2 others v Joseph Kipkosgei Bito & 7 others [2021] KEELC 2178 (KLR)
The bottom line
#A Kenyan court reinstated a company's defence filed two years late, but only because the company paid Kshs. 60,000 in costs within 14 days.
What this practically means
#Executive summary
#Key legal issues
#Whether pleadings filed without leave, two years after entry of service, should be reinstated after being struck out
Yes, in the interest of justice, but subject to a sanction of costs, since striking out is an extreme measure and the right to be heard must be respected.
The court acknowledged the 3rd defendant filed its appearance and defence two years late without leave and gave no explanation, an approach it condemned as trial by ambush. However, following authority, it held that non-compliance with the Rules is an irregularity curable except in very clear cases, and striking out is an extreme measure reserved for clear abuse. Balancing the right to be heard against the prejudice of a de novo trial, it reinstated the defence on conditions including payment of Kshs. 60,000 as costs/fine.
Whether the affidavit sworn by the advocate rather than an authorised officer of the 3rd defendant renders the application fatally defective
Not fatally defective; the objections raised by the respondents were left to be canvassed at the hearing of the main suit.
The 7th defendant and plaintiffs argued the supporting affidavit violated Order 4 Rule 1(4) because it was sworn by counsel who deponed to factual matters, and that the deponent to the defence statement was a stranger to the company per CR12 records. The court did not dispose of the application on these grounds; it held the issues raised would be canvassed at the hearing of the main suit and proceeded to reinstate the defence with a costs sanction.
Compliance with timelines for filing pleadings under Order 6 Rule 1 and Order 7 Rule 1 of the Civil Procedure Rules
The timelines must be adhered to unless there is good explanation for extension of time; filing documents two years late without leave is unacceptable.
The court found the 3rd defendant was served in February 2018 but only filed a memorandum of appearance, statement of defence and supporting documents on 10th November 2020, after two years and without leave, with no explanation. It stressed that civil procedure exists for orderly adjudication, there is no trial by ambush, and other parties must have adequate notice and a chance to respond. This supported the imposition of a sanction despite reinstatement.
Legal principles established
#- An omission to fully comply with a provision of the Rules is an irregularity which, except in very clear cases, may be cured; striking out a pleading filed out of time is an extreme measure resorted to only in the clearest of cases.
- A party filing documents out of time should not go scot-free; sanctions in the form of fines or costs should be meted out, while respecting the right of every person to be heard.
Court orders
#- 1.The order striking out the 3rd defendant's defence is set aside and the 3rd defendant is granted leave to file its defence out of time
- 2.The 3rd defendant to pay costs of Kshs. 60,000 to the 1st, 2nd, 3rd plaintiffs and the 7th defendant within 14 days, failing which the order lapses
- 3.The 3rd defendant to file the defence, witness statements, list of documents and documents within the same 14-day period
- Jurisdiction invoked
- Inherent and discretionary jurisdiction of the court under the Civil Procedure Act and Civil Procedure Rules 2010 (provisions not expressly cited in the ruling)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kipchirchir v Nakweri & 7 others (Environment & Land Case 92 of 2014) [2024] KEELC 4882 (KLR)[2024] KEELC 4882 (KLR)20 Jun 2024
Cite this brief
#Cite this brief
Caselaw, "Eliud Kibitok Keter & 2 others v Joseph Kipkosgei Bito & 7 others [2021] KEELC 2178 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2178/eng@2021-08-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.