Westmall Supermarkets Limited v Aziz (Suing in her capacity as the administrator of the Estate of Mohamed Bashir Meraj Din Ahmed Bux) & 7 others (Environment & Land Case 275 of 2016) [2023] KEELC 202 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Service of summons on a corporation
Although the Applicant alleged defective service under Order 5 rule 3, the record showed its counsel was appearing for the 1st and 2nd Defendants and had been accepting hearing notices since 2018
The court perused the record and found the Plaintiff had testified and that Mr. Gikandi was appearing for the 1st and 2nd Defendants. The Respondent showed the 1st Defendant, a major shareholder of the Applicant, had been accepting hearing notices since 2018. Nevertheless, the court held the corporate entity should be given a chance to file pleadings in the interest of justice.
Leave to file defence and counterclaim out of time
Leave granted, the 2nd Defendant being a corporate entity that should be heard so the court can determine the real issue in controversy
Applying the principle that even one triable issue entitles a defendant to leave to defend, and the liberal approach to amendments and joinder, the court held that the 2nd Defendant, though possibly aware of proceedings through its shareholder, should be allowed to file pleadings so a just and fair decision can be made. The absence of a draft defence annexed did not defeat the application.
Legal principles established
#- If the defence raises even one bona fide triable issue, the defendant must be given leave to defend
- Amendments and joinder should be freely allowed at any stage provided no prejudice or injustice that cannot be compensated in costs results
Court orders
#- 1.Leave granted to the Applicant/2nd Defendant to file its Defence and counterclaim out of time and within Twenty One (21) days upon service of summons by the Plaintiff
- 2.Costs of the application to be in the cause
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 95 of the Civil Procedure Act, Cap 21; Order 5 Rule 3 and Order 51 Rule 1 of the Civil Procedure Rules, 2010; Articles 159(2)(d) and 50 of the Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Westmall Supermarkets Limited v Aziz (Suing in her capacity as the administrator of the Estate of Mohamed Bashir Meraj Din Ahmed Bux) & 7 others (Environment & Land Case 275 of 2016) [2023] KEELC 202 (KLR)", Case Analysis (2023). ELC No 275 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/202/eng@2023-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.