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ELCPartially AllowedELC No 275 of 2016· [2023] KEELC 202 (KLR)

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)

Environment and Land Court
24 January 2023
1,837 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This was an application dated July 22, 2022 by Westmall Supermarket Ltd, the 2nd Defendant in ELC No 275 of 2016 at Mombasa, seeking inter alia a conservatory stay of the main suit and leave to file its Defence and counterclaim out of time. The Applicant contended that no summons were issued or served on its principal officers as required by Order 5 rule 3 of the Civil Procedure Rules, 2010, and that any judgment against it would be irregular and should be set aside as of right for breach of the right to be heard. The Plaintiff/Respondent opposed, showing that the Applicant had been represented by M/S Gikandi & Company Advocates, that the 1st Defendant - a major shareholder and director of the Applicant - had been accepting hearing notices on its behalf since 2018, and that no draft Defence or Counterclaim was annexed. The court noted the Plaintiff had already testified and that Mr. Gikandi appeared for both defendants. Applying the liberal principles on amendments and joinder from Central Kenya Ltd v Trust Bank and the rule that even one triable issue entitles a defendant to leave to defend (Moi University v Visha Builders, Patel v E.A. Cargo Handling), the court found the application merited. It granted leave to the 2nd Defendant to file its Defence and counterclaim out of time within 21 days, with costs of the application in the cause. The stay of the main suit was not granted.

Key legal issues

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01

Service of summons on a corporation

Holding

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

Reasoning

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.

p. 4
02

Leave to file defence and counterclaim out of time

Holding

Leave granted, the 2nd Defendant being a corporate entity that should be heard so the court can determine the real issue in controversy

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 2.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A and 95
  • Civil Procedure Rules, 2010Order 5 Rule 3, Order 5 Rule 1, Order 5 Rule 15, Order 51 Rule 1
  • Constitution of KenyaArticles 159(2)(d) and 50
  • Companies Act2015

Cases cited (5)

  • Central Kenya Ltd v Trust Bank & 4 others
    CA No 222 of 1998
  • AAT Holdings Limited v Diamond Shields International Ltd
    [2014] eKLR
  • Moi University v Visha Builders Limited
    Civil Appeal No 296 of 2004 (unreported)
  • H.D Hasmani v Banque Du Congo Belge
    [1938] 5 E.AC.A 89
  • Patel v E.A. Cargo Handling Services Ltd
    [1974] E.A. 75
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

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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, "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.