John Muikamba Gitau v Trustees Caritas Mariana Holy Family Children’s Home & another [2021] KEELC 2920 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Defendants should be granted leave to file their Defence out of time
The Application was allowed in the interest of justice, but conditionally on payment of throw away costs to the Plaintiff
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.
Whether the Defendants' explanation for the delay (advocate's mistake and confidence in the strike-out application) constituted sufficient cause
No - the reasons given did not hold water; the Defendants were well aware of their obligations but negligently failed to file
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.
Legal principles established
#- 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
#- 1.The Defendants/Applicants granted leave to file their Statement of Defence out of time
- 2.The said Defence to be filed and served within 14 days from the date of the ruling
- 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.Parties to go for Pre Trial Conference
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.