Richard Waruingi Mungai & another v Kenya Commercial Bank & 3 others (as per pleadings described in the judgment)
The bottom line
#A Kenyan court allowed a delayed court filing because delays were partly caused by deaths in the family, but ordered the late filer to pay costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the 2nd plaintiff established grounds for enlargement of time to file reply to defence and defence to counterclaim
The application was allowed despite prolonged delay, because the deaths of the original plaintiffs partly caused the delay and trial had not commenced
Applying the Salat principles, the court weighed the length of the delay against the circumstances: the deaths of both original plaintiffs, the substitution of the 2nd plaintiff, and the fact that trial had not commenced. Although the delay since the current advocates came on record in January 2020 was inordinate and equity aids the vigilant, the court found justice would be served by allowing all parties to ventilate their cases.
Whether blame can be laid wholly on previous advocates for failure to file pleadings
The court found the excuse insufficient, holding that litigants must be vigilant in following up their cases
The 2nd plaintiff's current advocates came on record on January 3, 2020, two years before the application was filed. The court held that a litigant must follow up on the conduct of their case with their advocate, and that equity aids the vigilant and not the indolent. Nonetheless this did not outweigh the other circumstances justifying extension.
Legal principles established
#- Extension of time is an equitable remedy exercised at the court's discretion and is not a right of a party
- In assessing delay, a court considers not only its length but all circumstances of the case
- Mistakes of counsel should not ordinarily be visited on an innocent litigant
Court orders
#- 1.This court hereby enlarges the time within which the 2nd plaintiff may file his Reply to defence and defence to counterclaim
- 2.The 2nd plaintiff is granted leave to file his reply to defence and defence to counterclaim upon payment of the requisite fees within 14 days of the date hereof
- 3.The 2nd plaintiff to pay to the 1st and 3rd defendants costs of the application
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 95 of the Civil Procedure Act and Order 51 rule 1 and Order 50 rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Richard Waruingi Mungai & another v Kenya Commercial Bank & 3 others (as per pleadings described in the judgment)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/287/eng@2023-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.