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ELCPartially AllowedNot stated in the judgment text provided· [2022] KEELC 1489 (KLR)

Geoffrey Mungai Thiongo v Elsie Ridge Limited & 4 others [2022] KEELC 1489 (KLR)

High Court of Kenya (court name not expressly stated; delivered at Nairobi)
20 January 2022
MOMOGENI
899 words in judgment
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The bottom line

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Kenya's High Court allowed a late application to amend a pleadings deadline but penalised the delay by making the applicant pay costs.

What this practically means

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Executive summary

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The court determined a Notice of Motion dated 17/01/2022 by the Plaintiff seeking leave to amend the Plaint, to file additional documentation and additional/amended witness statements, with costs in the cause. The application was brought under Order 8 Rule 3 and Order 51 Rule 1 of the Civil Procedure Rules 2010. An earlier application for leave to amend had been allowed on 14/12/2021 with 21 days to file; the present application was filed on the morning of 18/01/2022, the date fixed for hearing. The Defendants opposed, seeking to have it struck out as filed out of time, contending the 21 days lapsed on 04/01/2022. Plaintiff's counsel relied on Order 50 Rule 4, arguing the December vacation exemption (21st December to 13th January) extended the period to 27/01/2022. The court rejected this, holding the December Vacation Holiday applies only to judicial staff and cannot excuse non-compliance with court-ordered timelines. Nonetheless, exercising discretion judiciously and guided by the Article 50 right to be heard, and applying Shah & Another v. Mbogo and Ivita v. Kyumbu, the court held it is a serious matter to shut out a party from being heard absent deliberate obstruction of justice. It allowed the motion in terms of prayers 2, 3 and 4, directed that the Amended Plaint and additional documents and witness statements be filed and served by close of business on 20/01/2022, gave the Respondents 7 days to respond, directed a pretrial conference within 14 days, warned that default would vacate the orders, and ordered the Applicant to bear the costs of the application.

Key legal issues

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01

Computation of the 21-day period for filing the amendment application

Holding

The court rejected counsel's reliance on the December vacation exemption, holding the vacation applies only to judicial staff and cannot excuse non-compliance with court-issued timelines

Reasoning

Order 50 Rule 4 omits the period between 21st December and 13th January from computation of time for amending, delivering or filing pleadings. Counsel argued this extended the 21 days to 27/01/2022. The court held the December Vacation applies only to judicial staff and should not be invoked to excuse non-compliance, implying the application was out of time.

p. 2
02

Discretion to grant leave to amend despite delay

Holding

The discretion was exercised judiciously in favour of granting leave, guided by the Article 50 right to be heard and the principle that a party should not be shut out absent deliberate obstruction of justice

Reasoning

The court acknowledged the delay but held that the discretion must be exercised judiciously, not whimsically. Relying on Article 50 of the Constitution and the Shah v Mbogo and Ivita v Kyumbu line of authority, it found that justice would be better served by allowing the amendment than by striking out the application.

p. 2

Legal principles established

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  • The December vacation exemption under Order 50 Rule 4 CPR applies to computation of time for filing pleadings, but the court retains discretion to excuse non-compliance where justice would be served
  • A party should not be shut out from being heard where the suit can be prosecuted and justice done notwithstanding delay

Court orders

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  1. 1.The Notice of Motion dated 17/01/2022 allowed in terms of prayers 2, 3 and 4
  2. 2.The Amended Plaint dated 10/01/2022 together with additional documentation and additional/amended witness statements to be filed and served by Close of Business on 20/01/2022
  3. 3.Respondents granted leave to file and serve their responses within 7 days after service
  4. 4.Applicant at liberty to file a response to the Respondents' responses if need be
  5. 5.Parties to appear before the Deputy Registrar for Pretrial Conference within 14 days thereafter
  6. 6.Failure to abide by the orders will result in the orders being automatically vacated
  7. 7.Costs of the application to be borne by the Applicant

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 8 Rule 3
  • Civil Procedure Rules 2010Order 51 Rule 1
  • Civil Procedure Rules 2010Order 50 Rule 4
  • Constitution of Kenya, 2010Article 50

Cases cited (2)

  • Shah & Another v. Mbogo
    [1967] EA 117
  • Ivita v. Kyumbu
    [1984] KLR 44
Jurisdiction invoked
Original civil jurisdiction; application under Order 8 Rule 3 and Order 51 Rule 1 of the Civil Procedure Rules 2010

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, "Geoffrey Mungai Thiongo v Elsie Ridge Limited & 4 others [2022] KEELC 1489 (KLR)", Case Analysis (2022). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1489/eng@2022-01-20

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