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ELCPartially AllowedNot stated in the judgment (suit filed 14th June 2016 in Kerugoya ELC and transferred to Thika ELC in 2017)· [2021] KEELC 2920 (KLR)

John Muikamba Gitau v Trustees Caritas Mariana Holy Family Children’s Home & another [2021] KEELC 2920 (KLR)

Environment and Land Court
17 June 2021
2,412 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court let late-defence defendants back into a land case, but only after paying the plaintiff Kshs.20,000 throw away costs.

What this practically means

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Executive summary

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The Defendants/Applicants moved the Court by Notice of Motion dated 23rd June 2020 seeking leave to file their Statement of Defence, witness statements and bundle of documents out of time, plus costs. Their application to strike out the plaint had been dismissed on 7th May 2020, and no defence had been filed despite the suit having been filed in 2016 (transferred to Thika ELC in 2017) and appearance entered on 30th June 2016. The Defendants blamed their advocate's inadvertence and their confidence that the strike-out application would succeed. The Plaintiff opposed, arguing the delay of about four years was deliberate and inordinate, that extension of time is an equitable remedy for deserving parties, and that the Defendants had earlier sought to suspend time for filing a defence, showing awareness of their obligations. The Court framed one issue: whether the application was merited. Applying Order 7 Rule 1 of the Civil Procedure Rules, it held the Defendants were aware of their obligations but negligently failed to comply, and their reasons did not hold water. However, because this was a land case, no interlocutory judgment had been entered, the draft defence raised triable issues, and the Plaintiff could be compensated by costs, the Court - guided by Sebel District Administration v Gasyali and Beatrice Wanjiru Kamuri - allowed the application in the interest of justice. Leave was granted conditional on payment of Kshs.20,000/= throw away costs within 14 days, failing which the leave lapses and the suit proceeds as undefended. The ruling was delivered virtually pursuant to COVID-19 directions.

Key legal issues

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01

Whether the Defendants should be granted leave to file their Defence out of time

Holding

The Application was allowed in the interest of justice, but conditionally on payment of throw away costs to the Plaintiff

Reasoning

The Court found the Defendants' explanations insufficient - they negligently failed to file a defence despite awareness of their obligations, blaming their advocate and their confidence in their strike-out application. However, the draft Defence raised triable issues, no interlocutory judgment had been entered, this was a land case, and the Plaintiff's prejudice could be compensated by costs. Relying on Sebel District Administration and Beatrice Wanjiru Kamuri, the Court admitted the defence out of time subject to payment of throw away costs of Kshs.20,000/= within 14 days, failing which the leave lapses and the suit proceeds undefended.

p. 2
02

Whether the Defendants' explanation for the delay (advocate's mistake and confidence in the strike-out application) constituted sufficient cause

Holding

No - the reasons given did not hold water; the Defendants were well aware of their obligations but negligently failed to file

Reasoning

The Defendants claimed they expected their application to strike out the plaint to succeed and blamed their advocate's inadvertence. The Court held that pendency of an application is no excuse under the Civil Procedure Rules, that clients must follow up their cases, and that the application itself was filed over a month after the ruling on the strike-out application. The Defendants had even earlier sought an extension of time to file a defence, showing they knew their obligations.

p. 2

Legal principles established

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  • Clients cannot hide behind the failure of their advocates and must follow up the progress of their case
  • An application pending in court does not excuse a defendant from filing a defence within the prescribed time
  • In extending time the court considers the nature of the action, the defence raised, whether the plaintiff can be compensated by costs, and that denying a hearing is the last resort
  • Leave to file a defence out of time may be granted subject to costs as a sanction for late filing

Court orders

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  1. 1.The Defendants/Applicants granted leave to file their Statement of Defence out of time
  2. 2.The said Defence to be filed and served within 14 days from the date of the ruling
  3. 3.The Defendants/Applicants to pay the Plaintiff throw away costs of Kshs.20,000/= within 14 days from the date hereof, failing which the leave granted will lapse and the matter will proceed as undefended
  4. 4.Parties to go for Pre Trial Conference

Authorities

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Legislation

  • Civil Procedure RulesOrder 7 Rule 1
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (3)

  • Gerald Mwithia Vs Meru College of Technology & Another
    [2018] eKLR
  • Sebel District Administration vs Gasyali & Others
    (1968) E.A. 300
  • Beatrice Wanjiru Kamuri v John Kibira Muiruri
    [2016] eKLR
Jurisdiction invoked
Inherent discretion of the Court under the Civil Procedure Rules (Order 7 Rule 1) to extend time for filing a defence

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, "John Muikamba Gitau v Trustees Caritas Mariana Holy Family Children’s Home & another [2021] KEELC 2920 (KLR)", Case Analysis (2021). Not stated in the judgment (suit filed 14th June 2016 in Kerugoya ELC and transferred to Thika ELC in 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2920/eng@2021-06-17

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