Riverbank Plaza Limited v Nairobi (Environment and Land Case Civil Suit 1958 of 2007) [2022] KEELC 3106 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the defendant's advocate's inadvertence and negligence constituted sufficient reason to set aside the order of 25th July 2017
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
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.
Whether the plaintiff would suffer prejudice if the application was allowed
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
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.
Legal principles established
#- 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
#- 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.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.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.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
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.