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ELCAllowedNot stated in judgment· [2024] KEELC 4045 (KLR)

Makau & another v Nzioka (Environment & Land Case E002 of 2022) [2024] KEELC 4045 (KLR)

Environment and Land Court
20 May 2024
COChristine Ochieng
1,381 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court allowed a late court filing because illness explained the delay and no one would be unfairly harmed by accepting it.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Machakos (Christine Ochieng, J) on the Defendant's Notice of Motion dated 7th December 2023, seeking leave to file her Defence and Counter-claim out of time. The delay followed the Plaintiffs' amendment of their Plaint, after which the court directed the Defendant to amend her Defence; she failed to do so in time. Her advocate explained that she had been ailing and hospitalised, went to her rural home to recuperate, and could not be reached. The Plaintiffs opposed, contending the delay was prolonged and unexplained, accusing the Defendant of dishonesty, bad faith and unclean hands, and relying on Order 8 Rule 5 of the Civil Procedure Rules. The court framed a single issue: whether leave to file the Amended Defence including Counter-claim out of time should be granted. Relying on Order 8 Rules 3 and 5 and the principles summarised in Elijah Kipngeno Arap Bii v Kenya Commercial Bank Limited (as adopted from Joseph Ochieng v First National Bank of Chicago), the court held that amendments may be made at any stage to determine the real question in controversy and should be allowed in good faith where costs can compensate. Noting the Defendant had annexed a draft Defence raising explanations on her acquisition of the suit land, and that the suit was not set down for hearing, the court found no prejudice to the Plaintiffs and allowed the application, granting the Defendant fourteen days and the Plaintiffs twenty-one days to respond, with costs in the cause.

Key legal issues

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01

Whether leave should be granted to file Defence and Counter-claim out of time

Holding

Application allowed; the delay was explained by illness, the suit was not set down for hearing, and the Plaintiffs would suffer no prejudice

Reasoning

The court noted the Plaintiffs had amended their Plaint and the Defendant had been directed to amend her Defence but failed to do so in time due to ill health. Relying on Order 8 Rules 3 and 5 of the Civil Procedure Rules and the principles in Elijah Kipngeno Arap Bii v Kenya Commercial Bank Ltd, the court held that amendment serves to determine the true substantive merits, may be sought at any stage, and should be allowed if made in good faith and no prejudice ensues. The Defendant had annexed a draft Defence raising explanations regarding acquisition of the suit land, central to the dispute.

p. 3

Legal principles established

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  • Amendments may be made at any stage of proceedings to determine the real question in controversy, provided the other side suffers no prejudice that costs cannot compensate

Court orders

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  1. 1.Leave granted to the Defendant to file and serve the Amended Defence including Counter-claim within fourteen (14) days
  2. 2.Upon service, leave granted to the Plaintiffs to file and serve a reply to Defence and Defence to Counter-claim, if need be, within twenty-one (21) days
  3. 3.Costs in the cause
Jurisdiction invoked
Order 8 Rules 3(1), (2) and 5 of the Civil Procedure Rules

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, "Makau & another v Nzioka (Environment & Land Case E002 of 2022) [2024] KEELC 4045 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4045/eng@2024-05-20

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