Enara Ltd

5. Learned counsel submitted that whereas the court has discretion to enlarge time, his client has suffered due to the delay. Learned counsel for the defendant, Miss Salim, opposed the Preliminary Objection on the ground set out in the replying affidavit of ( ) that it offends the ………… 6. Article 50 of the Constitution since if allowed, it will deny the defendant the right to be heard. Learned counsel submitted that the court, if it allows the preliminary objection, will amount to a miscarriage of justice. Learned counsel submitted that striking out pleadings or proceedings is a sparingly exercised discretionary power, as was held in Blue Shield Insurance Company Ltd vs Joseph Ogatta Mboya (2009), as cited with approval in Michael K.Muathee Vs Kyalo Mwikya & Another ( 2026) eKLR. 7. Learned counsel submitted that the defence filed raises triable issues and equally those in a counterclaim on record. Learned counsel submitted that the delay was occasioned due to counsel being on maternity leave. 8. In a rejoinder, learned counsel for the plaintiff submitted that the delay has been admitted and even if it is explained, still the case belongs to the defendant and not the law firm. 9. Learned counsel submitted that the defendant has not personally responded to the preliminary objection. Learned counsel submitted that the defendant on record also is not accompanied by a list of documents or witness statement. 10.A preliminary objection consists of a pure point of law, which has been pleaded or which arises by clear implication out of pleadings and which, if argued as a preliminary point, as held in Mukisa Biscuit Manufacturing Company Ltd. Vs West End Distributors Ltd. (1969) EA 696, may dispose of the suit. MILIMANI ELC LC E357 OF 2025 2

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11.In Oraro Vs Mbaja (2005) eKLR, the court said that a preliminary objection must not be blurred with factual aspects calling for proof or seeking to adduce evidence for its authentication. What the plaintiff is raising is that the defence and counterclaim on record were filed outside the court timeline and therefore offend Order 1 of Rule 1 CPR. The plaintiff terms the non-compliance with timelines on sitting of pleadings as a gross non-compliance with the law. 12.The defendant, while admitting the delay, gives an explanation for the same. It involves Article 50 of the Constitution. In Sawe vs IIBC & Others (2015) eKLR and in Telkom Kenya Ltd. vs Ochamba & Others (2014) KECA 600 (KLR), the court emphasised that Article 159 of the Constitution is not a panacea for all procedural non-compliance and therefore should not render procedural rules, or be used as a cure to all procedural defects. 13.In IEBC vs Jane Chepetenger & others (205) eKLR, the court said that a preliminary objection should be founded upon a settled crisp point of law, to the intent that its application to undisputed facts lead to but one conclusion that the facts are incompatible with that point of law. 14.The rationale underlying a preliminary objection is that it intends to dispose of a matter at the earliest opportunity where there exists a clear legal impediment apparent from the pleadings on record. 15.Exercise of discretion to admit pleadings out of time is what is before the court. On hand, it is not contested by the plaintiff that the defence and counterclaim are on court record. 16.The plaintiff, on the other hand, terms the same as filed without leave of court and after an inordinate delay. There is on record an affidavit of service and a request for default judgment dated 18.8.2025. Other than that, there is no evidence that the plaintiff took any other steps to list the MILIMANI ELC LC E357 OF 2025 3

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matter for formal proof before the defendant filed an appearance and the defence and counterclaim on record. Equally, apart from the preliminary objection, there is no evidence that the plaintiff received the pleadings under protest, filed a reply to the defence and defence to the counterclaim raising the preliminary objection or expressing any reservation, including over the prejudice suffered. 17.Additionally, other than the preliminary objection, there is no evidence on record that the plaintiff sought to have the defence and counterclaim struck out on grounds set out under Order 6 CPR. The power to allow for leave to file pleadings out of time or to strike out pleadings filed out of time without leave is discretionary in nature. 18.The power to grant leave is to be exercised where there is a plausible, honest and satisfactory explanation for the delay, as held in Nicholas Kiptoo Arap Salat vs IEBC & 7 Others, Supreme Court Application No. 16 of 2014 (2014) eKLR ruling delivered on 4th June 2014 19.A true preliminary objection, as held in IEBC VS Jane Chepenger & 2 Others (2015) Civil Appeal 36 of 2014 (2015) KESC 2(KLR) (15TH December 2015) (Ruling), serves two purposes of merit. It inter alia spares scarce Judicial time to be committed only to deserving cases of dispute settlement. 20.The decisions as to whether to admit pleadings filed out of time or to strike out are an exercise of court discretion. In Paul Mwiti Wambua vs AG & others (2015) KECA 471 (KLR), Civil Application No. 131 of 2015, ruling on 31st July,2015, the court said that the discretion to extend leave to file an appeal out of time is a discretionary power not based on whim or caprice, but on inter alia, the length of the delay, reasons for the same, chances of the appeal succeeding, and the degree of prejudice to the respondent if the application is granted. MILIMANI ELC LC E357 OF 2025 4

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21.Striking out of pleadings is a draconian step which, as held in D.T Dobie & Company Kenya Ltd Vs Muchina Civil Appeal No.37 of 1978 (1982) KLR 1, should be exercised sparingly and only in the clearest of cases. Rules of procedure are the handmaidens of justice and ought not to be ignored, as held in Muma Matemu vs Trusted Societies of Human Rights Alliance & others (2013) eKLR. Whether or not to exercise discretion to regularise filing of pleadings is governed by Order 5 Rule 6 CPR and section 95 of the CPR. 22.A party who pleads prejudice to delayed filing of pleadings must show the nature of the prejudice, that there is abuse of court process, that the defence or pleadings are hopeless, and that, if allowed, it will greatly disadvantage him under the statute and the Constitution. 23.In Blue Shield Insurance Company Ltd vs Joseph Mboya Ogutta (2009) D.T Dobie Company Kenya Ltd. Vs Muchina (1982) KLR (1) that, in exercise of the power to strike out a pleading, the court must first consider all the facts, and that, as held in Pall Seiss Stifung vs Ranjuer & Keeles Ltd. & others no. 3 (1970) Chp A 506, the power to strike out any pleadings is not mandatory but permissive, exercisable sparingly having regard to the quality and all the circumstances relating to the offending pleading. 24.In the words of Madan J. A in DT Dobie Company Kenya Ltd. Vs Muchina (supra), the power to strike out a pleading is akin to driving a party from the seat of judgment and therefore should be sparingly exercised. 25.Applying the law to the instant suit, I think the preliminary objection is not a pure point of law. It seeks exercise of court discretion. It falls short of the threshold get-out in the cited case law above. The suit is yet to commence hearing. The plaintiff’s prejudice, if any, is curable by way of MILIMANI ELC LC E357 OF 2025 5

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court. As much as there has been delay, the defendant has tried to explain the same. The defence and counterclaim raise issues which need to be tried at the main hearing. 26.The court declines the invitation to deny the defendant an opportunity to ventilate the offensive pleading. The plaintiff is granted leave to file a reply to the defence and defence to the counterclaim, which shall be reserved, fully accompanied by witness statement & document, within 30 days of the date hereof. 27.Costs of the preliminary objection to the plaintiff in any event. 28.Orders accordingly. 29.Pre-trial Conference on 27th October,2026. DATED, SIGNED AND DELIVERED THIS 16TH SEPTEMBER 2026 ………………………… HON C.K NZILI JUDGE 16.9.2026 Delivered in the presence of ; Mr Abubakar for the plaintiff Court Assistant: Julius MILIMANI ELC LC E357 OF 2025 6

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