Julius Musili Kyunga v Kenya Commercial Bank Ltd & another; James Muriuki Karaya (Interested Party) [2021] KEELC 2922 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether an application for directions to file a defence to a counterclaim eleven years after service should be allowed despite inordinate delay
The application was allowed because no directions had ever been given after the interested party was enjoined, and denying it would deprive the plaintiff of the chance to defend the counterclaim on its merits
The court acknowledged the application was brought after inordinate delay of eleven years, but found that the court had never given directions on how parties were to proceed after leave was granted to the interested party to be enjoined. Allowing the application permitted the counterclaim to be decided on its merits, whereas refusing it would deny the plaintiff an opportunity to ventilate its case. The interested party had also taken no step on the counterclaim until the present application.
Whether an interested party's defence and counterclaim is a nullity in a suit initiated by plaint
The preliminary objection failed; the court held the question of whether the plaintiff has a defence on merit against the counterclaim ought to be determined at the hearing of the counterclaim, not on objection
The court held that upholding the objection would deny the interested party, properly enjoined by the court, the chance to ventilate his case even though the plaintiff had withdrawn the suit against the defendants. Whether the plaintiff can sustain a defence is a matter for trial; determining it now would risk delving into the merits of the counterclaim.
Legal principles established
#- Once a court has enjoined an interested party, it has a mandate to ensure all matters in controversy between the parties are completely and finally determined, to avoid multiplicity of proceedings
- Inordinate delay by a party should not, in itself, shut the doors of justice where the counter-claimant has also taken no step on the claim
- The merits of a proposed defence to a counterclaim cannot be determined on an interlocutory application or preliminary objection
Court orders
#- 1.Notice of Preliminary Objection dated 23rd February 2021 dismissed
- 2.Notice of Motion dated 4th November 2020 allowed
- 3.The plaintiff, Julius Musili Kyunga (and the defendants if they so wish) to file defence to the counterclaim by the interested party and to file witness statements, list of documents and list of witnesses within fourteen (14) days from the date hereof
- 4.Costs of the application to be in the cause
- Jurisdiction invoked
- Order 1 Rule 10 of the Civil Procedure Rules, Sections 1A and 1B of the Civil Procedure Act and Article 159(2) of the Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Julius Musili Kyunga v Kenya Commercial Bank Ltd & another; James Muriuki Karaya (Interested Party) [2021] KEELC 2922 (KLR)", Case Analysis (2021). Not stated in judgment (originating suit filed 13th November 2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2922/eng@2021-06-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.