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ELCAllowedNot stated in the excerpt (originally filed in the High Court on 27th July 2006; given current number upon transfer in 2007)· [2022] KEELC 3106 (KLR)

Riverbank Plaza Limited v Nairobi (Environment and Land Case Civil Suit 1958 of 2007) [2022] KEELC 3106 (KLR)

Environment and Land Court (transferred from the High Court)
27 June 2022
2,489 words in judgment
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The bottom line

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Kenya's Environment and Land Court reinstated a landowner's defence and counter-claim struck out five years earlier, confirming most filing mistakes can be fixed by paying costs.

What this practically means

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Executive summary

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The defendant, in a 16-year-old land suit originally filed in the High Court on 27th July 2006 and transferred to the Environment and Land Court, sought by Notice of Motion dated 10th July 2021 to set aside the court's order of 25th July 2017 striking out its amended defence and counter-claim, which had been filed on 18th April 2017 outside the 7-day period set in the ruling of 24th January 2017 granting leave to amend. The defendant attributed its non-compliance and non-attendance to oversight and inadvertent error by its advocates. The plaintiff opposed, arguing inordinate delay, absence of sufficient grounds, and abuse of process, submitting that advocate's negligence is not a sufficient reason to set aside a court order. The court, exercising its discretion under Order 51 Rule 15 and Order 50 Rule 5 of the Civil Procedure Rules, acknowledged the defendant's litany of inexcusable errors but held these did not extinguish its discretion. Applying Shah v Mbogo, Phillip Chemwolo v Kubede and Richard Nchapi Leiyangu v IEBC, and noting the plaintiff had already filed an unconditional reply to the amended defence and defence to counter-claim and would suffer no prejudice beyond delay, the court allowed the application. It set aside the striking-out order, extended time to 18th April 2017, deemed the amended defence and counter-claim properly filed and served, and awarded the plaintiff thrown away costs of Kshs. 40,000/- payable forthwith and before the next hearing date.

Key legal issues

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01

Whether the defendant's advocate's inadvertence and negligence constituted sufficient reason to set aside the order of 25th July 2017

Holding

Although the advocate's errors were inexcusable and could not themselves justify setting aside, the court's discretion under the Civil Procedure Rules remained available and was exercised in favour of the defendant in the wider interest of justice

Reasoning

The court acknowledged a litany of inexcusable errors by the defendant's advocates but held that these did not take away its discretion. Applying Shah v Mbogo and Phillip Chemwolo, it found no fraud or intention to overreach, and since the plaintiff had already replied to the amended defence and counter-claim, no prejudice incapable of compensation in costs would be suffered.

p. 4
02

Whether the plaintiff would suffer prejudice if the application was allowed

Holding

No prejudice beyond delay was identified, and the plaintiff had already filed an unconditional reply to the amended defence and defence to counter-claim on 3rd May 2017

Reasoning

The court noted that the only prejudice pleaded was delay, and that the plaintiff having already responded to the amended pleadings, reinstating them would not delay the hearing. The suit was already 16 years old largely due to interlocutory applications for which the defendant could not be blamed.

p. 4

Legal principles established

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  • The court's discretion to set aside an ex parte order exists to avoid injustice from accident, inadvertence or excusable mistake, not to assist a party who deliberately sought to obstruct or delay justice
  • In exercising discretion, the consequences a party suffers from an advocate's blunders must be proportionate to the prejudice the other party would suffer if relief is granted
  • Unless there is fraud or intention to overreach, no error or default cannot be put right by payment of costs

Court orders

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  1. 1.The order granted on 25th July 2017 striking out the defendant's amended defence and counter-claim dated 6th February 2017 filed on 18th April 2017 is set aside
  2. 2.The time within which the defendant was to file its amended defence and counter-claim pursuant to the leave granted on 24th January 2017 is extended to and including 18th April 2017
  3. 3.The defendant's amended defence and counter-claim dated 6th February 2017 filed on 18th April 2017 is deemed as properly filed and served
  4. 4.The defendant shall pay to the plaintiff thrown away costs assessed at Kshs. 40,000/- payable forthwith and in any event before the next hearing date

Authorities

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Legislation

  • Civil Procedure RulesOrder 51 Rule 15
  • Civil Procedure RulesOrder 50 Rule 5

Cases cited (4)

  • Patriotic Guards Ltd. v James Kipchirchir Sambu
    Nairobi CA No. 20 of 2016, [2018] eKLR
  • Shah v Mbogo
    [1967] E.A 116
  • Phillip Chemwolo & Another v Augustine Kubede
    [1982-88] KAR 103
  • Richard Nchapi Leiyangu v IEBC & 2 others
    Civil Appeal No. 18 of 2013
Jurisdiction invoked
Order 51 Rule 15 and Order 50 Rule 5 of the Civil Procedure Rules; original civil suit transferred from the High Court

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, "Riverbank Plaza Limited v Nairobi (Environment and Land Case Civil Suit 1958 of 2007) [2022] KEELC 3106 (KLR)", Case Analysis (2022). Not stated in the excerpt (originally filed in the High Court on 27th July 2006; given current number upon transfer in 2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3106/eng@2022-06-27

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