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ELCPartially AllowedCMCC Number 1267 of 2014 (Appeal therefrom)· [2022] KEELC 1124 (KLR)

Robert Okeri Ombeka v Peter Ng’ang’a Chege [2022] KEELC 1124 (KLR)

High Court of Kenya
24 February 2022
2,370 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court confirmed courts can allow a late defence even for a seven-day delay, and courts cannot refuse simply by claiming no procedure exists.

What this practically means

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Executive summary

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This is an appeal against a ruling of Hon. Mrs. M. Chesang (Resident Magistrate) in CMCC No. 1267 of 2014, dismissing the Defendant's notice of motion dated 2nd October 2014 seeking leave to file his defence out of time in a suit concerning ownership of Plot Number 1B at Makongeni-Kaloleni. The trial Magistrate had held that there was no provision in the Civil Procedure Rules allowing a defence to be filed out of time, attributed the failure to the Defendant's advocates' negligence, and dismissed the application with costs. Komingoi J allowed the appeal. The court held that Order 50 Rule 6 of the Civil Procedure Rules empowers the court to enlarge time for filing a defence even after expiry of the fourteen-day period fixed by Order 7 Rule 1, and that the trial Magistrate erred in stating her hands were tied. The wrong citation of Order 50 Rule 4 in the motion was an immaterial technicality under Article 159(2)(d) of the Constitution. The court found that the seven-day delay was not inordinate, that no prejudice would be occasioned to the Plaintiff, that the mistake of counsel should not be visited on the litigant, and that denying the Defendant a hearing would contravene Article 50(1). Applying Sebel District Administration v Gasyali and the factors in Board of Trustees of AIPCA v Peter Mungai Kimani, the court set aside the ruling of 10th February 2015 and substituted an order allowing the Defendant's notice of motion. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether there is a procedure for filing a defence out of time

Holding

The trial Magistrate erred in holding there was no such procedure; Order 50 Rule 6 empowers the court to enlarge time even after expiry of the fixed period

Reasoning

Order 7 Rule 1 requires a defence within fourteen days of appearance, but Order 50 Rule 6 grants the court power to enlarge a limited time fixed for doing any act under the Rules, even where the application is made after expiry of the time. The inherent powers under section 3A of the Civil Procedure Act also support this. The trial court's statement that its hands were tied was an error of law, and the fact that the application cited Order 50 Rule 4 rather than Rule 6 was an immaterial technicality under Article 159(2)(d).

p. 3
02

Whether the seven-day delay amounted to inordinate delay warranting denial of leave

Holding

A delay of about seven days was not inordinate and no prejudice would have been occasioned to the Plaintiff

Reasoning

The court applied the factors in Board of Trustees of African Independent Pentecostal Church of Africa v Peter Mungai Kimani and the principles in Sebel District Administration v Gasyali, which require consideration of the nature of the action, whether the plaintiff can be compensated by costs, and that denying a defendant a hearing should be the last resort. Blaming counsel's negligence and shutting out the defendant over a seven-day delay disregarded the overriding objectives and Article 50(1) right to a fair hearing.

p. 3

Legal principles established

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  • There exists a procedure for filing a defence out of time under Order 50 Rule 6 of the Civil Procedure Rules, and a court should not decline enlargement of time on the ground that no such procedure exists
  • Justice shall be administered without undue regard to procedural technicalities, and an application should not fail merely because it cites the wrong provision
  • A short delay of about seven days is not inordinate, and no prejudice would be occasioned by allowing a defence to be filed out of time

Court orders

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  1. 1.The ruling of the subordinate court dated 10th February 2015 is set aside and substituted with an order allowing the Appellant's notice of motion dated 2nd October 2014
  2. 2.Each party to bear own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 7 Rule 1
  • Civil Procedure RulesOrder 50 Rule 6
  • Civil Procedure RulesOrder 50 Rule 4
  • Civil Procedure ActSection 3A
  • Environment and Land Court ActSection 19
  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Article 159(2)(a) and (d)

Cases cited (9)

  • Harun Rashid Khator vs Sudi Hamisi and 1 (eleven) Others
  • Sebel District Administration v Gasyali & Others
    [1968] E.A 300
  • John Muikamba Gitau v Trustees Caitas Mariana Holyfamily Children Home & another
    [2021] eKLR
  • Noniko Holdings Limited & 2 Others v Atticon Limited & 5 Others
    [2020] eKLR
  • Aviation Cargo Support Ltd v St Mark Freight Services Limited
    [2014] eKLR
  • Samuel Mwaura Muthumbi v Josephine Wanjiru Ngugi
    [2018] eKLR
  • Jackson Biegon v Charles Too & 3 Others
    [2005] eKLR
  • Board of Trustees of African Independent Pentecostal Church of Africa vs Peter Mungai Kimani & 12 Others
    [2016] eKLR
  • Patriotic Guards Ltd vs James Kipchirchir Sambu
    [2018] eKLR
On appeal from
Subordinate Court (Chief Magistrate's Court)
CMCC Number 1267 of 2014
Jurisdiction invoked
Appellate jurisdiction of the High Court over appeals from subordinate courts in civil matters (memorandum of appeal dated 22nd June 2015)

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, "Robert Okeri Ombeka v Peter Ng’ang’a Chege [2022] KEELC 1124 (KLR)", Case Analysis (2022). CMCC Number 1267 of 2014 (Appeal therefrom). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1124/eng@2022-02-24

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