I. Introduction
1. This Honorable Court is tasked to determine the Notice of Motion application dated 20th November 2024. It was instituted by Ramadhan Kombo Matano, Omar Ali Kombo and Salim Hassan Salim, the 1st, 2nd and 3rd Defendants/Applicants herein, under the provision of Section 59 Interpretation and General Provisions Order 50 Rule 6, Order 51 Rule 1 of the Civil Procedure Rules, 2010 and Sections 1A and 1B of the Civil Procedure Act, Cap. 21 and all other enabling provisions of the law. The Plaintiffs also filed a Notice of Motion application dated 10th March, 2024 by Ramadhan Matano Kombo and Salim Abdallah Salim, the Applicants herein under the Sections 1, 1A, 1B, 3, 3A, 63(e), Civil Procedure Act, Cap. 21, Laws of Kenya; Articles 1, 2, 3, 10, 12, 19, 20, 21, 22, 23, 24, 25, 28, 39, 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 no responses elicited whatsoever. In essence, although it was not opposed but the Honourable Court will proceed to render a Ruling on its merit thereof.
II. The 1st, 2nd and 3rd Defendants/Applicants’ case
3. The 1st, 2nd & 3rd Defendants/Applicants sought for the following orders:-
a) That the Honourable Court be pleased to extend time for filing of Defence by the 1st,2nd and 3rd Defendants and grant leave to the Defendants to file 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.
4. The application was premised on the grounds, testimonial facts, and averments made out under the 10 Paragraphed Supporting Affidavit of – ROBINSON MALOMBO, the Plaintiffs/ Applicants herein sworn and dated 20th November, 2024. The Applicants averred that:
(a) This Honourable Court issued directions on the 18th of November, 2024, that the 1st, 2nd and 3rd Defendants do file an application to extend time for filing 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 filed on the 27th April 2021 and later settled by consent. Annexed in the affidavit was a letter dated 30th January 2024 and marked as “ROM - 1”.
(d) The advocate on record was instructed and filed a notice of appointment on 25th January 2024.Annexed in the affidavit was a notice of appointment and marked as “ROM - 2”.
(e) Taking that human to err, this error was occasioned by an office oversight in terms that the belief was that there was a Defence filed given that the matter was initially filed on the 27th of April 2021.
(f) The 1st, 2nd and 3rd Defendants have a bona fide defence which raises triable issues and pray that the suit be heard on merit. Annexed in the affidavit was a draft defence, which was marked as “ROM - 3”.
(g) The application was made in the interests of justice.
(h) The Affidavit was sworn in support of the Application filed herein.
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 file 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 statutes.
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 has made out a case for the extension of time for filing their defence and leave to file their Defence out of time;
b) Who will bear the Costs of the Notice of Motion application dated 20th November 2024?
ISSUE No. a). Whether this has made out a case for the extension of time for filing their defence and leave to file 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 file 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 specific time is fixed 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 suffered by the respondents if the extension is granted;
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.
10. Similarly, in the 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 filed 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 the power to extend time for complying with any court order. The section provides as follows –
“95. Where any period is fixed 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 fixed or granted may have expired.”
12. 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 fixed 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 the 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 file an application to extend time for filing 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 find 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, file his defence within fourteen days after he has entered an appearance in the suit and serve it on the plaintiff within fourteen days from the date of filing the defence and file an affidavit 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 put the Advocate’s office 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 filed on the 27th of April 2021 and later settled by consent. Annexed in the affidavit was a letter dated 30th January 2024 and marked as “ROM - 1”. The Advocate on record was instructed and filed a Notice of Appointment of Advocates on 25th January 2024. Annexed in the affidavit was a notice of appointment and marked the same as “ROM - 2”. Clearly, as humans are to err, the error was occasioned by an office oversight in terms that the belief was that there was a Defence filed given that the matter was initially filed on the 27th of April, 2021. The 1st, 2nd and 3rd Defendants had a bona fide defence which raises triable issues and pray that the suit be heard on merit. I find 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 file 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 an extension of time. The costs of the Application will abide by 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 Plaintiffs for any prejudice suffered and inconveniences caused, l proceed to award the Plaintiffs all-inclusive thrown away costs of a sum of Kenya shillings a 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 filed be struck out at the expiry of the subject period and without recourse to court. I further grant the Plaintiffs the right to file 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 the 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.
V. Conclusion & Disposition
21. In long analysis, the Honorable Court has carefully considered and weighed the conflicting parties’ interests 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 filing 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 file 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 Plaintiffs for any prejudice suffered and inconveniences cause, the Plaintiffs 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 filed be struck out at the expiry of the subject period and without recourse to court.
f) THAT I further grant the Plaintiffs the right to file 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 – pre-trial conference and taking further direction for the disposal of 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.
Ruling delivered in the presence of:
a) M/s. Firdaus Mbula, the Court Assistant.
b) Mr. Ngonze Advocate for the Plaintiffs/Respondents.
c) Mr. Mohammed Advocate holding brief for Mr. Malombo Advocate for the 1st, 2nd and 3rd Defendants/Applicants