1. Before this Court for determination is the Plaintiff’s Notice of Motion application dated 3rd April 2025 seeking leave to file a reply to defence and a defence to counterclaim out of time. The Application is expressed to have been brought under Article 159 of the Constitution, section 1A, 1B & 3A of the Civil Procedure Act, order 7 rule 11 and order 51 rule 1 of the Civil Procedure Rules.
2. The Application is premised on the grounds set out in the supporting affidavit sworn by the Plaintiff’s Counsel on 3rd April 2025, and the written submissions filed by the Plaintiff. The Defendants did not file any response or submissions to oppose the application.
3. The background of the matter is that the Plaintiff instituted this suit by a Plaint dated 20th June 2022, seeking, among other reliefs, special, general, and exculpatory damages arising from an alleged breach of contract.
4. The 3rd and 4th Defendants filed their amended defence on 16th March 2023, to which the Plaintiff duly filed a reply. The 1st and 2nd Defendants subsequently filed their respective defences and counterclaims.
5. The Plaintiff’s Counsel, in his affidavit in support of the application, stated that he had prepared a reply to the defence and a defence to the counterclaims, but he inadvertently failed to upload the same to the e-filing portal. This omission was only discovered during the pretrial phase when the matter was already certified ready for hearing.
6. As a result, the Plaintiff now seeks the Court’s permission to file the omitted pleadings, hence the instant application.
7. The Plaintiff asserted that the matter had already been certified ready for hearing and that no prejudice would be occasioned to the Defendants if the replies were deemed as duly filed upon payment of the requisite court fees.
8. The Plaintiff filed written submissions dated 23rd April 2025 in support of the Application.
Analysis and determination
9. The Court has considered the Plaintiff’s submissions and the legal authorities cited. Since the application is unopposed, the Court nonetheless bears the duty to satisfy itself that the Applicant has met the threshold for the orders sought. The only issue for determination is whether the Court should grant the Plaintiff leave to file the reply to defence and defence to counterclaim out of time.
10. Order 50 rule 6 of the Civil Procedure Act provides:-
“ Where a limited time has been fixed for doing any act or 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 of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise.”
11. In Martha Wangari Karua –VS- IEBC Nyeri Civil Appeal No.1 of 2017 as quoted and agreed upon in the case of Alliance Media Kenya Ltd v Sports Stadia Management Board [2021] Eklr, the Court of Appeal held as follows:-
“The Rules of Natural Justice require that the court must not necessarily drive any litigant from the seat of justice without a hearing, however weak his or her case may be...”
…
Justice demands that the applicant be accorded an opportunity to present his defence before being condemned to pay such a huge sum of money. The Defendant deserves to be allowed an opportunity to present his case and have the same determined on its merits.”
12. It is trite law that mistakes by counsel should not be automatically visited upon a litigant. In Philip Keipto Chemwolo & Another v Augustine Kubende [1986] eKLR, the Court of Appeal held that: -
“Blunders will continue to be made from time to time, and it does not follow that because a mistake has been made, a party should suffer the penalty of not having his case heard on merit.”
13. The Plaintiff has demonstrated that the failure to file was due to a bona fide mistake, and no prejudice has been shown to result from granting leave to regularize the position.
14. In this case, the Plaintiff’s advocate failed to upload the reply to defence and defence to counterclaim against the 1st and 2nd Defendants’ pleadings. Guided by Article 159 of the Constitution, Order 50 Rule 6 of the Civil Procedure Act, and the authority above, I am inclined to grant the Plaintiff leave to file a reply to defence and defence to counterclaim in respect of the 1st and 2nd Defendants’ statement of defence and counterclaim.
15. The Plaintiff has also annexed the draft reply and defence to counterclaim, which raises triable issues. The courts have repeatedly held that where a party discloses even a single triable issue, they ought to be given the opportunity to ventilate the same at a hearing. (See DT Dobie & Co (K) Ltd v Muchina [1982] KLR 1.)
16. Considering the amounts involved in the dispute (over USD 1,280,881.31, approximately Kshs 133,211,700), it would be unjust to lock out the Plaintiff from responding to the counterclaims without a hearing on the merits.
17. In any event, the Respondents have not filed any opposition to the application. Further, no evidence has been presented to suggest that they will suffer irreparable harm if the orders are granted. Any inconvenience can be compensated by costs.
18. In view of the foregoing, the Court finds that the Plaintiff’s application is meritorious. The delay has been satisfactorily explained, and the overriding objective of the Court requires that disputes be determined substantively.
Orders
i. The Plaintiff is hereby granted leave to file the reply to defence and the defence to counterclaim within fourteen (14) days from the date hereof.
ii. The pleadings shall be deemed properly filed upon payment of the requisite fees.
iii. The Defendants shall be at liberty to amend their pleadings, if necessary, within 14 days of service.
iv. The costs of this application shall be in the cause.
19. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
24TH DAY OF JULY 2025
ADO MOSES
JUDGE
In the Presence of
Moses C/A
Ms. Wambui………for Plaintiff
Kirimi……………. for 3rd Defendant
2. The Application is premised on the grounds set out in the supporting affidavit sworn by the Plaintiff’s Counsel on 3rd April 2025, and the written submissions filed by the Plaintiff. The Defendants did not file any response or submissions to oppose the application.
3. The background of the matter is that the Plaintiff instituted this suit by a Plaint dated 20th June 2022, seeking, among other reliefs, special, general, and exculpatory damages arising from an alleged breach of contract.
4. The 3rd and 4th Defendants filed their amended defence on 16th March 2023, to which the Plaintiff duly filed a reply. The 1st and 2nd Defendants subsequently filed their respective defences and counterclaims.
5. The Plaintiff’s Counsel, in his affidavit in support of the application, stated that he had prepared a reply to the defence and a defence to the counterclaims, but he inadvertently failed to upload the same to the e-filing portal. This omission was only discovered during the pretrial phase when the matter was already certified ready for hearing.
6. As a result, the Plaintiff now seeks the Court’s permission to file the omitted pleadings, hence the instant application.
7. The Plaintiff asserted that the matter had already been certified ready for hearing and that no prejudice would be occasioned to the Defendants if the replies were deemed as duly filed upon payment of the requisite court fees.
8. The Plaintiff filed written submissions dated 23rd April 2025 in support of the Application.
Analysis and determination
9. The Court has considered the Plaintiff’s submissions and the legal authorities cited. Since the application is unopposed, the Court nonetheless bears the duty to satisfy itself that the Applicant has met the threshold for the orders sought. The only issue for determination is whether the Court should grant the Plaintiff leave to file the reply to defence and defence to counterclaim out of time.
10. Order 50 rule 6 of the Civil Procedure Act provides:-
“ Where a limited time has been fixed for doing any act or 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 of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise.”
11. In Martha Wangari Karua –VS- IEBC Nyeri Civil Appeal No.1 of 2017 as quoted and agreed upon in the case of Alliance Media Kenya Ltd v Sports Stadia Management Board [2021] Eklr, the Court of Appeal held as follows:-
“The Rules of Natural Justice require that the court must not necessarily drive any litigant from the seat of justice without a hearing, however weak his or her case may be...”
…
Justice demands that the applicant be accorded an opportunity to present his defence before being condemned to pay such a huge sum of money. The Defendant deserves to be allowed an opportunity to present his case and have the same determined on its merits.”
12. It is trite law that mistakes by counsel should not be automatically visited upon a litigant. In Philip Keipto Chemwolo & Another v Augustine Kubende [1986] eKLR, the Court of Appeal held that: -
“Blunders will continue to be made from time to time, and it does not follow that because a mistake has been made, a party should suffer the penalty of not having his case heard on merit.”
13. The Plaintiff has demonstrated that the failure to file was due to a bona fide mistake, and no prejudice has been shown to result from granting leave to regularize the position.
14. In this case, the Plaintiff’s advocate failed to upload the reply to defence and defence to counterclaim against the 1st and 2nd Defendants’ pleadings. Guided by Article 159 of the Constitution, Order 50 Rule 6 of the Civil Procedure Act, and the authority above, I am inclined to grant the Plaintiff leave to file a reply to defence and defence to counterclaim in respect of the 1st and 2nd Defendants’ statement of defence and counterclaim.
15. The Plaintiff has also annexed the draft reply and defence to counterclaim, which raises triable issues. The courts have repeatedly held that where a party discloses even a single triable issue, they ought to be given the opportunity to ventilate the same at a hearing. (See DT Dobie & Co (K) Ltd v Muchina [1982] KLR 1.)
16. Considering the amounts involved in the dispute (over USD 1,280,881.31, approximately Kshs 133,211,700), it would be unjust to lock out the Plaintiff from responding to the counterclaims without a hearing on the merits.
17. In any event, the Respondents have not filed any opposition to the application. Further, no evidence has been presented to suggest that they will suffer irreparable harm if the orders are granted. Any inconvenience can be compensated by costs.
18. In view of the foregoing, the Court finds that the Plaintiff’s application is meritorious. The delay has been satisfactorily explained, and the overriding objective of the Court requires that disputes be determined substantively.
Orders
i. The Plaintiff is hereby granted leave to file the reply to defence and the defence to counterclaim within fourteen (14) days from the date hereof.
ii. The pleadings shall be deemed properly filed upon payment of the requisite fees.
iii. The Defendants shall be at liberty to amend their pleadings, if necessary, within 14 days of service.
iv. The costs of this application shall be in the cause.
19. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
24TH DAY OF JULY 2025
ADO MOSES
JUDGE
In the Presence of
Moses C/A
Ms. Wambui………for Plaintiff
Kirimi……………. for 3rd Defendant