This appeal is in respect of the ruling the Subordinate Court dated 29.07.2019 in which the court struck out the Appellant’s Reply to Defence and Defence to Counterclaim as they were filed out of time. I have considered the arguments by the parties and I think it is the interests of justice to allow the appeal. The suit is yet to be heard and the issue raised in all the pleadings are linked hence the court and the parties should have an opportunity to ventilate their issues. Moreover, this is a case where any prejudice can be mitigated by an award of costs.
I therefore allow the appeal and set aside the order dated 29.07.2019 and order as follows:
1. The Reply to Defence and Defence to Counterclaim dated 09.10.2017 shall be deemed as duly filed and served.
2. The Appellant shall pay costs of the subordinate court and this appeal assessed at Kshs. 25,000.00 within 14 days from the date hereof.
DATED and DELIVERED at NAIROBI this 15th day of NOVEMBER 2023
D. S. MAJANJA
JUDGE