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ELCDismissedNot stated in judgment· [2022] KEELC 3200 (KLR)

Thiongo & another v Gathuru (Environment & Land Case 133 of 2017) [2022] KEELC 3200 (KLR)

Environment and Land Court
9 June 2022
JKJ G Kemei
1,864 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Thika court refused a landowner permission to file his defence six years late, warning that both clients and lawyers must answer for inexcusable delay.

What this practically means

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Executive summary

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The Defendant/Applicant filed a Notice of Motion dated 16/2/2022 seeking leave to file a defence, list of documents, list of witnesses and witness statement out of time, and to have them deemed properly on record. The application was supported by an affidavit of the Defendant's counsel, who attributed the delay to inadvertence and to the suit having been filed under a certificate of urgency. Though apparently unopposed, the Plaintiffs/Respondents' written submissions opposed the application, citing the mandatory timelines in Order 7 rules 1 and 5 Civil Procedure Rules, inordinate delay of over six years, laches, and prejudice since they had already testified and closed their case. The court traced the history: suit filed 8/2/2016, appearance entered 15/6/2016, and the defendant's non-participation at numerous hearings despite service. The court rejected the certificate-of-urgency explanation as factually untrue and irrelevant, noted that the client himself gave no explanation, and observed that the defendant had participated in the hearing and cross-examined witnesses without a defence. Relying on Johana Kipkemei Too v Hellen Tum and Ringera J's dictum in Omwoyo v African Highlands, the court held that counsel must shoulder the consequences of negligence, that equity does not aid the indolent, and that allowing a defence pleading fraud at that late stage would prejudice the plaintiffs, who could not rebut it. The application was dismissed with costs to the Respondent, the defendant being left to whatever other remedy he may have, being in possession of the land.

Key legal issues

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01

Whether leave should be granted to file a defence out of time under Order 7 rules 1 and 5 Civil Procedure Rules

Holding

Leave refused because pleadings had long closed, the delay of over six years was inordinate and unexplained, and the plaintiffs had already testified and closed their case

Reasoning

The court found the explanation (suit filed by certificate of urgency) factually untrue and irrelevant. Counsel swore the supporting affidavit but the client gave no explanation. The defendant participated in the hearing and cross-examined witnesses without a defence, showing disinterest. Allowing the defence now would alter the character of the plaintiffs' case, including a fraud plea they could not rebut, contrary to Article 50 and the overriding objective.

p. 3
02

Whether mistake or negligence of counsel should be visited on the client

Holding

Counsel's negligence is not a free pass; both counsel and the client bear responsibility, and the defendant retains an alternative remedy

Reasoning

The court cited Ringera J's dictum that legal practitioners should shoulder the consequences of negligence like other professionals. The client also has a duty to follow up his case, and the defendant was in possession of the land, so he would not be left without a remedy even if the application was dismissed.

p. 4
03

Interaction between the right to a fair hearing under Article 50 and timely filing of a defence

Holding

Article 50 cuts both ways: it guarantees adequate time to file a defence but also guarantees the plaintiffs a fair hearing and final determination after closing their case

Reasoning

The court held that no cogent reasons were advanced for the failure to file the defence within time, so the defendant could not invoke Article 50 to excuse inordinate delay, while the plaintiffs deserved the final determination of their case after testifying and closing their case.

p. 4

Legal principles established

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  • Legal practitioners must shoulder the consequences of their negligent acts or omissions like other professionals
  • A client is under a duty to follow up the prosecution of his case; equity cannot aid the indolent

Court orders

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  1. 1.The application is unmerited. It is dismissed.
  2. 2.The costs shall be in favour of the Respondent.

Authorities

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Legislation

  • Civil Procedure RulesOrder 51
  • Civil Procedure ActSections 1A, 1B and 3A
  • Constitution of KenyaArticles 50 and 159; Article 50(1)
  • Civil Procedure RulesOrder 7 rules 1 & 5
  • Civil Procedure RulesOrder 4 rule (1) and (2); Order 11

Cases cited (6)

  • Concord Insurance Co. Ltd v NIC Bank
    [2013] eKLR
  • Leslie Okubo Atuma v National Bank of Kenya Ltd
    [2015] eKLR
  • Johanna Kipkemei Too v Hellen Tum
    [2014] eKLR
  • Owoyo v African Highlands & Produce Co. Ltd
    [2002] 1 KLR
  • Andrew Mang'uu Kaboi v Wellington Kihato Wamburu
    [2022] eKLR
  • Purdy v Cambrian
    [1999] ALL EER 1518
Jurisdiction invoked
Order 51 Civil Procedure Rules, Sections 1A, 1B and 3A Civil Procedure Act and Articles 50 and 159 Constitution of Kenya

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, "Thiongo & another v Gathuru (Environment & Land Case 133 of 2017) [2022] KEELC 3200 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3200/eng@2022-06-09

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