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ELCPartially AllowedEnvironment & Land Case 663 of 2012· [2023] KEELC 20037 (KLR)
Muriu v Njuhiga
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·~4 min to read original · ~4 min briefThe bottom line
#A Nairobi court let a defendant file her defence over two years late, prioritising the right to be heard over strict deadlines.
What this practically means
#Executive summary
#This ruling by the Environment and Land Court at Nairobi (E. K. Wabwoto, J) determined a Notice of Motion dated May 25, 2023 by the Defendant, Rose Nyambura Njuhiga, seeking leave to file her defence and counterclaim out of time, that the draft defence and counterclaim be deemed duly filed, and that costs be in the cause. The Defendant asserted she was never served with summons or pleadings, that she was the legal wife of the deceased (married in 1990, solemnised in 2002), that the Plaintiff's grant of letters of administration had been revoked, and that she solely purchased plots 134 and 135 on LR No. 5805/2 Kamiti Corner Phase 4. The Plaintiff replied that the application and plaint were served on October 5, 2012, summons were reissued in December 2019 and March 2020, and service was effected by WhatsApp on March 8, 2021, evidenced by an affidavit of service; she argued the application came eleven years after suit, that the applicant did not come with clean hands, and that the defence and counterclaim were contradictory, an afterthought, scandalous, frivolous, vexatious and an abuse of process. The court framed a single issue: whether the application was merited. It confirmed service by WhatsApp on March 8, 2021, meaning the defence was due by March 15, 2021, and the application came over two years late. Nevertheless, balancing case management and timely justice against each party's constitutional right to be heard, the court allowed the application, directing the defence and counterclaim to be filed within 7 days, with no orders as to costs.
Key legal issues
#01
Whether leave should be granted to file defence and counterclaim out of time
Holding
Leave granted despite inordinate delay, balancing case management with the constitutional right to be heard.
Reasoning
The court noted service by WhatsApp on March 8, 2021, making the defence due by March 15, 2021, and the application came over two years late. Although emphasising timely filing and case management, the court held that the interest of justice and each party's constitutional right to be heard justified allowing the late defence and counterclaim, to be filed within 7 days.
p. 3
Legal principles established
#- A defendant served with summons must file a defence within fourteen days of entering appearance, but the court retains discretion to grant leave to file out of time in the interest of justice.
Court orders
#- 1.Leave granted to the Defendant to file her defence and counterclaim out of time
- 2.Defence and counterclaim to be filed within 7 days from the date of the ruling
- 3.No orders as to costs
- Jurisdiction invoked
- Environment and Land Court jurisdiction over the suit; application under Order 7 of the Civil Procedure Rules for leave to file defence and counterclaim out of time
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muriu v Njuhiga", Case Analysis (2023). Environment & Land Case 663 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20037/eng@2023-09-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.