Patel & another v United Engineering Supplies Limited; Patel (Interested Party) (Environment & Land Case E090 of 2023) [2024] KEELC 6650 (KLR)

to set down the Defendant’s application for ruling on 23rd July, 2024, having noted that the Plaintifis had not complied with its directions. 3. The Plaintifis plead that their claim against the Defendant is substantial involving a sum of Kshs. 51,600,000/- in unpaid rent amongst other prayers. They assert that they stand to be prejudiced if not given an opportunity to respond to the Defendant’s application, as they may be condemned unheard. It is therefore their assertion that it will be in the interest of justice that they be allowed an opportunity to respond to the Defendant’s application. 4. The Plaintifi’s application is supported by the afidavit of Dinkar Rambai Patel sworn on 9th May, 2024. In the afidavit, the deponent reiterates the grounds on the face of the application. He attaches the draft replying afidavit prepared on behalf of the Plaintifis and sent to the Plaintifis’ legal adviser who made comments on it as elaborated at paragraph 8 of the said supporting afidavit. 5. The Plaintifis’ application was opposed by the Defendant through its replying afidavit sworn by the Sanjay Ramesh Patel on 14th June, 2024. The deponent asserts that the Plaintifis have not given a reasonable explanation for their failure to comply with the directions of the Court. The reasons advanced in the Plaintifis’ application are not valid. He further points out that the Plaintifis’ Advocate even failed to turn up in Court on 29th April, 2024 when the matter was mentioned to confirm compliance with the Court’s directions in order to explain their failure to comply. 6. The Defendant avers that the Plaintifis’ casual approach to the matter is calculated to impede the timely disposal of this case. It is a delaying tactic. He points out to an email communication from the Plaintifis’ Advocates to the alleged legal adviser which was sent almost a month after the Court’s directions to demonstrate that the Plaintifis’ Advocates did not treat the matter with the seriousness it deserved. 7. The Defendant prays for the dismissal of the Plaintifis’ application. Court’s Directions 8. The Court’s directions were that the Plaintifis’ application be heard orally. It was heard as such on 20th June, 2024. The proceedings of the day form part of the record of this Court. I need not replicate them here. Issues for Determination. 9. Having considered the Plaintifis’ application, the response by the Defendant and the oral submissions by both sides, the sole issue for determination is whether the Plaintifis have ofiered a reasonable explanation to enable the Court exercise its discretion to extend time in their favour. Analysis and Determination 10. Undoubtedly, this Court has the discretion to enlarge time as sought by the Plaintifis. Order 50 rule 6 of the Civil Procedure Rules explicitly provides that: “ …..the Court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed.” 11. The Supreme Court of Kenya in the case of Nicholas Kiptoo Arap Korir Salat – vs – IEBC & 7 others (2014) eKLR, laid down the principles that govern the exercise of the discretion to extend time as follows: - https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6650/eng@2024-10-11 2

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1. Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party, at the discretion of the Court; 2. A party who seeks extension of time has the burden of laying a basis, to the satisfaction of the Court; 3. Whether the Court should exercise the discretion to extend time, is a consideration to be made on a case- to- case basis; 4. Where there is a reasonable [cause] for the delay, [the same should be expressed] to the satisfaction of the Court; 5. Whether there will be any prejudice sufiered by the Respondents, if extension is granted; 6. Whether the application has been brought without undue delay; and 7. Whether in certain cases, like election petitions, public interest should be a consideration for extending time” 12. I have considered the Plaintifis’ application against the above principles particularly on whether a reasonable explanation has been ofiered for the delay to the satisfaction of the Court and whether there is any prejudice to be sufiered by the Respondent if the extension is granted. 13. The Plaintifis’ Advocates have cited delay from the Plaintifis’ personal legal adviser as the cause of their non-compliance with the directions by the Court. The Plaintifis’ further submitted that any prejudice to the Defendant can be compensated by an award of costs. 14. The Defendant in opposition as pointed out earlier avers that the Plaintifis have not ofiered a reasonable extension for the non-compliance with Court’s directions. In its submissions, the Defendant submitted that it stands to sufier delay in the determination of its case, a violation of its right to have the dispute determined expeditiously. 15. Considering the circumstances of this case, the Court finds it fit and just in the interest of substantive justice to allow the Plaintifis’ application. The explanation by the Plaintifis is sensible. In any event no delay will be occasioned in this matter since the Plaintifis have already prepared their intended replying afidavit and the submissions they intend to file. The Court in allowing the application will set the timelines within which the same will be filed and served. 16. Order 50 rule 6 of the Civil Procedure Rules provides that the costs of any application to extend time and any order thereon shall be borne by the party(s) making such application, unless the Court otherwise orders. In this case, the Court orders that the costs of this application be borne by the Plaintifis/Applicants. 17. Accordingly, the Plaintifis’ application dated May 9, 2024 is hereby allowed with costs to the Defendant to be assessed in the usual way. 18. The Plaintifis shall file and serve the attached replying afidavit and submissions in the next 24 hours. The date of the ruling on the Defendant’s application remains as earlier scheduled. It is so ordered. RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 11TH DAY OF JULY 2024. M.D. MWANGI https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6650/eng@2024-10-11 3

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JUDGE In the virtual presence of: Ms. Kadima for the Plaintifi/Applicant Mr. Thuo for the Defendant/Respondent Yvette: Court Assistant M.D. MWANGI JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6650/eng@2024-10-11 4

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