Kombo & another v Matano & 5 others

40, 47, 48, 50, 60, 64, 159, 162, 165, 169, 258 and 259, Constitution of Kenya, 2010; Order 22 Rule 22, Order 40, Order 51 Rule 1, Civil Procedure Rules, 2010, Laws of Kenya. 2. Upon service of the application to the Respondents, there were responses elicited whatsoever. In essence, although it was not opposed but the Honourable Court will proceed on to render a Ruling on its own merit thereof. II. The 1st, 2nd and 3rd Defendants/Applicants’ case 3. 4. The 1st, 2nd & 3rd Defendants/Applicants sought for the following orders:a. That the Honourable Court be pleased to extend time for ling of Defence by the 1st,2nd and 3rd Defendants and grant leave to the Defendants to le Defence out of time. b. That the Honourable court be pleased to grant the 1st, 2nd and 3rd Defendants leave to put in their pre-trial documents consequent to grant of prayer 1 above. c. That the Costs of this Application be provided for. The application was premised on the grounds, testimonial facts and averments made out under the 10 Paragraphed Supporting Adavit of –ROBINSON MALOMBO, the Plaintis/ Applicants herein sworn and dated 20th November, 2024. The Applicants averred that: a. This Honourable Court issued directions on the 18th November, 2024 that the 1st, 2nd and 3rd Defendants do le an application to extend time for ling of Defence and slatted the matter for hearing on the 7th April 2025 and the 12th May 2025. b. It was imperative that the application be determined before the said hearing slatted for the 7th April 2025 and the 12th May 2025 and further leave be granted to the 1st, 2nd and 3rd Defendants to put in their pre-trial documents. c. The reason why the extension of time is sought is that the 1st, 2nd and 3rd Defendants in the initial instructions had informed the said advocates now on record that they had given the work to another advocate and the advocate on record verily believed that there was a Defence on record given that the matter was initially led on the 27th April 2021 and later settled by consent. Annexed in the adavit was a letter dated 30th January, 2024 and marked as “ROM - 1”. d. The advocate on record was instructed and led a notice of appointment on 25th January 2024.Annexed in the adavit was a notice of appointment and marked as “ROM - 2”. e. Taking that human to err, this error was occasioned by an oce oversight in terms that the belief was that there was a Defence led given that the matter was initially led on the 27th April, 2021. f. The 1st, 2nd and 3rd Defendant have a bona de defence which raises triable issues and pray that the suit be heard on merit. Annexed in the adavit was a draft defence which was marked as “ROM - 3”. g. The application was made in the interests of justice. h. The Adavit was sworn in support of the Application led herein. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18750/eng@2025-03-28 2

page 2 of 6

III. Submissions 5. On 18th November, 2024 while all the parties were present in Court, they were directed to have the Notice of Motion application dated 20th November, 2024 be disposed of by way of written submissions and all the parties complied. Unfortunately, by the time of penning down this Ruling, the Court had not been able to access any of the written Submissions from the le nor the Judiciary CTS. Pursuant to that, it proceeded to render its ruling on 21st March, 2025 accordingly. IV. Analysis & Determination. 6. I have carefully read and considered the pleadings herein by the 1st, 2nd and 3rd Defendants/Applicants, the relevant provisions of the Constitution of Kenya, 2010 and statures. 7. In order to arrive at an informed, just, equitable and reasonable decision, the Honorable Court has two (2) framed issues for its determination. These are:a. Whether this have made out a case for the extension of time for ling their defence and leave to le their Defence out of time; b. Who will bear the Costs of Notice of Motion application dated 20th November, 2024. ISSUE No. a). Whether this have made out a case for the extension of time for ling their defence and leave to le their defence out of time. 8. Under this sub title the Court is called to examine whether or not to extend time for the 1st, 2nd and 3rd Defendants and leave to le their defence out of time.The Court’s power to enlarge time is governed by the legal provisions of Section 95 of the Civil Procedure Act, Cap. 21 and Order 50 Rule 6 of the Civil Procedure Rules, 2010.In the words of Kemei J. in the case of:- “Margaret Njoki Kamau – Versus - Reuben Ndivo Mwangi (2021) eKLR”: “ Order 50 Rule 6 provides that where a specic time is xed for doing an act or taking any proceedings, the court has powers to enlarge such time on terms notwithstanding that the application is brought after the time prescribed has lapsed. The courts power to enlarge time is unfettered. The discretion must however be exercised judiciously and not capriciously.” 9. The Court is bound and guided by these principles. The principles that govern the exercise of discretion to extend time were authoritatively enunciated by the Supreme Court in the case:-“Nicholas Kiptoo Arap Korir Salat - Versus - Independent Electoral & Boundaries Commission & 7 others (2014) eKLR” as follows; a. 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; b. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court; c. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case by case basis; d. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court; e. Whether there will be any prejudice suered by the respondents if the extension is granted; https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18750/eng@2025-03-28 3

page 3 of 6

10. f. Whether the application has been brought without undue delay. g. Whether in certain cases, like election petitions, public interest should be a consideration for extending time. Similarly, in case of:- “Harun Osoro Nyamboki – Versus - Peter Mujunga Gathuru (Supra)”, the court expressed itself as follows; “ In determining such an application for time extension, the court has to consider whether the explanation given for any delay is reasonable and credible, whether there also exist extenuating circumstances to enable the court exercise its unfettered jurisdiction; and that the delay, in any event, should not be so inordinate as to leave no doubt, that an applicant has been slothful and led such an application as an afterthought.” 11. The court is guided by these sentiments.Under the provision of Section 95 of the Civil Procedure Act, Cap. 21, the court has power to extend time for complying with any court order. The section provides as follows – “ 95. 12. Where any period is xed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge such period, even though the period originally xed or granted may have expired.” With regard to court orders on stay of execution, Order 50 Rule 6 of the Civil Procedure Rules provides as follows – “ 6. Where a limited time has been xed for taking any proceedings under these Rules, or by summary notice or by order of the court, 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; provided that the costs of any application to extend such time and for any orders made thereon shall be borne by the parties making such application, unless the court orders otherwise.” 13. It is thus clear to me from the provisions of Section 95 of the Civil Procedure Act, Cap. 21 and Order 50 Rule 6 of the Civil Procedure Rules, 2010 this court has power to extend the period of time ordered by this court for compliance with any act. In the instant case, the Applicant has given reasons that this Honourable court issued directions on the 18th November, 2024 that the 1st, 2nd and 3rd Defendants do le an application to extend time for ling of Defence and slatted the matter for hearing on the 7th April 2025 and the 12th May 2025. It was imperative that the application be determined before the said hearing slatted for the 7th April 2025 and the 12th May 2025 respectively and further leave be granted to the 1st, 2nd and 3rd Defendants to put in their pre-trial documents. 14. I have considered the arguments advanced and I nd that, indeed the provisions of Order 7 Rule 1 of the Civil Procedure Rules 2010, provides that: “ Where a Defendant has been served with a summons to appear he shall, unless some other or further order be made by the court, le his defence within fourteen days after he has entered https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18750/eng@2025-03-28 4

page 4 of 6

an appearance in the suit and serve it on the plainti within fourteen days from the date of ling the defence and le an adavit of service” 15. Further, it does not resonate with the provisions of Article 159 (1) & ( 2 ) of the Constitution of Kenya, 2010 and Sections 1A and 1B of the Civil Procedure Act, Cap. 21 on the inherent powers of the Court and which call for expeditious resolution of dispute. Similarly, the reasons advanced for the delay puts the Advocate’s oce and profession into issue. Be that as it may, the key question is whether, the Applicants should be denied their constitutional right of access to justice as enshrined under 48 of the Constitution, of Kenya. The right to be heard cannot, be compensated by damages. However, delay in expeditious disposal though not condoned, can be compensated by damages. 16. Primarily, why the extension of time is sought is that the 1st, 2nd and 3rd Defendants in the initial instructions had informed the said Advocates now on record that they had given the work to another Advocate. The said Advocate on record verily believed that there was a Defence on record given that the matter was initially led on the 27th April 2021 and later settled by consent. Annexed in the adavit was a letter dated 30th January, 2024 and marked as “ROM - 1”. The Advocate on record was instructed and led a Notice of Appointment of Advocates on 25th January 2024. Annexed in the adavit was a notice of appointment and marked the same as “ROM - 2”. Clearly, as human was to err, the error was occasioned by an oce oversight in terms that the belief was that there was a Defence led given that the matter was initially led on the 27th April, 2021. The 1st, 2nd and 3rd Defendants had a bona de defence which raises triable issues and pray that the suit be heard on merit. I nd no prejudice that will be caused to the Respondent. Having considered all the arguments herein, l hold the view that, it is in the interest of justice that, the Applicants be allowed to le their defence out of time to enable the matter to be decided on merit. 17. In the circumstances of this matter therefore, I will allow the request for extension of time. The costs of the Application will abide the results of the suit. In any case, I noted the application was never opposed anyway. Consequently, I therefore allow the application in terms of prayers (a) to (c) herein. To compensate the Plaintis for any prejudice suered and inconveniences caused, l proceed to award the Plaintis all-inclusive thrown away costs of a sum of Kenya shillings Hundred thousand only (Kshs 100,000.00) to be paid within seven (7) days from the date of this order. 18. In default thereof the defence led be struck out at the expiry of the subject period and without recourse to court. I further grant the Plaintis the right to le a reply to the defence within the stipulated time under the law. ISSUE No. b). Who will bear the Costs of Notice of Motion application dated 20th November, 2024. 19. It is now well established that the issue of Costs is a discretion of the Court. Costs mean the award a party is awarded at the conclusion of a legal action or proceedings in any litigation. The provision of Section 27 (1) of the Civil Procedure Act, Cap. 21 holds that costs follow the events. By event it means the results or outcome of the legal action or proceedings. See the decisions of Supreme Court “Jasbir Rai Singh – Versus - Tarchalan Singh” eKLR (2014) and Cecilia Karuru Ngayo – Versus – Barclays Bank of Kenya Limited, eKLR (2014). 20. In the case of “Hussein Muhumed Sirat – Versus - Attorney General & Another [2017] eKLR, the court stated that costs follow the event as a well-established legal principle, and the successful party is entitled to costs unless there are other exceptional circumstances. In this case, this Honourable Court has reserved its discretion to have the costs in the cause. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18750/eng@2025-03-28 5

page 5 of 6

V. Conclusion & Disposition 21. In long analysis, the Honorable Court has carefully considered and weighed the conicting parties’ interest as regards to balance of convenience. Ultimately in view of the foregoing detailed and expansive analysis to the rather omnibus application, this court arrives at the following decision and makes below order:a. That the Notice of Motion application dated 20th November, 2024 be and is hereby found to have merit thus it is allowed as prayed with the costs to be in the cause. b. That this Honourable Court do and hereby issues an order extending the time for ling of Defence by the 1st,2nd and 3rd Defendants within the next 30 days from the delivery of this Ruling and leave is granted for the 1st, 2nd and 3rd Defendants to le their defence out of time. c. That this Honourable Court do and hereby issues an order granting the 1st, 2nd and 3rd Defendants leave to put in their Pre - trial documents as per the provision of Order 11 of the Civil Procedure Rules, 2010 consequent to grant of prayer 1 above. d. That this Honourable Court do and hereby issues an order that the 1st, 2nd and 3rd Defendants compensate the Plaintis for any prejudice suered and inconveniences cause, the Plaintis be awarded all-inclusive thrown away costs of sum of Kenya shillings Hundred thousand only (Kshs 100,000.00) to be paid WITHIN SEVEN (7) DAYS from the date of this order. e. That in default thereof the Defence led be struck out at the expiry of the subject period and without recourse to court. f. That I further grant the Plaintis the right to le a reply to the defence within the stipulated time under the law g. That for expediency sake, there be a mention on 29th April, 2025 before Hon. Justice Olola for conducting of a Pre – Trial Conference and taking further direction for the disposal o this matter. h. That the Costs shall be in the cause. It Is So Ordered Accordingly. RULING DELIVERED THROUGH THE MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS 28TH DAY OF MARCH 2025. ............................................ HON. MR. JUSTICE L. L. NAIKUNI, ENVIRONMENT AND LAND COURT AT MOMBASA Ruling delivered in the presence of: a. M/s. Firdaus Mbula, the Court Assistant. b. Mr. Ngonze Advocate for the Plaintis/Respondents. c. Mr. Mohammed Advocate holding brief for Mr. Malombo Advocate for the 1st, 2nd and 3rd Defendants/ Applicants https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18750/eng@2025-03-28 6

page 6 of 6