Bhogal v Mukui [2025] KEHC 10281 (KLR)

Bhogal v Mukui (Civil Case E010 of 2023) [2025] KEHC 10281 (KLR) (17 June 2025) (Ruling)

Neutral citation: [2025] KEHC 10281 (KLR)

Republic of Kenya

In the High Court at Nakuru

Civil Case E010 of 2023

SM Mohochi, J

June 17, 2025

Between

Harbinder Singh Bhogal

Plaintiff

and

Hilda Muthoni Mukui

Defendant

Ruling

1. Before me is a Notice of Motion dated 18th August 2023 filed pursuant to Section 1 A, 1B and 3A of the Civil Procedure Act. Cap 21 Laws of Kenya. Order 2 Rule, 15 Order 50 Rule 8 and Order 51 Rule 1 of the Civil Procedure Rules, 2010 and all other enabling provisions of the law for the following Orders;i.Spent.ii.That this honorable court be pleased to strike out the Defendant/Respondent's statement of defence dated 28th June 2024 and its accompanying documents and reinstate the default judgment in favor of the plaintiff.iii.That this Honourable court be pleased to issue any other or further orders that it may deem fit and just to grant in the greater interest of justice.iv.That the costs of this application be provided for.

2. The Application is premised on the following grounds is further supported by the annexed affidavit of Harbinder Singh Bhogal: -i.That the defendant/respondent herein failed to file and serve her statement of defence within the fourteen (14) day period after being served with the summons to enter appearance as required by law.ii.That the plaintiff/applicant consequently obtained default judgment from the honorable court against the defendant/respondent in the sum of Kshs. 28,934,000/=,iii.That on application by the defendant/respondent, the honorable court granted her leave to file her statement of defence out of time and within thirty (30) days from the date of the issuance of the ruling, viz the 25th April 2024. iv.That the defendant/respondent flagrantly and inordinately failed to adhere with court order and purportedly filed her statement of defence long after the lapse of the thirty (30) days period granted by the honorable court.v.That there is no justification for the delay in the filing of the defence long after the expiry of the time ordered and the defendant's conduct amounts to abuse of the court process.vi.That orders are necessary to ensure that the plaintiff/applicant does not continue to suffer great prejudice resulting from the defendant/respondent's inordinate and unjustifiable delay in facilitating the court process.vii.That it is in the interest of justice that the honorable court does intervene in ensuring that justice is not defeated by reason of unjustifiable delay on the part of the defendant/respondent.

3. The Respondent on her part opposed the application in her replying affidavit dated 19th July 2024 deponing that:i.Conceding with regret that she filed her Statement of Defence and the accompanying pre-trial documents late, on 28th June, 2024 which was about one month outside of the timelines given by the court vide its Ruling dated 25th April, 2024. ii.That following the said Ruling, her Advocates wrote to her informing her of the said Ruling and seeking her further instructions regarding the filing of the Defence and pre-trial documents. The said letter was sent to her by email. Unfortunately, she missed and did not see the said letter on time, as the said email somehow went to her "spam" mail and that she only learnt of and retrieved the letter when here Advocates' telephonically contacted her in June 2024 to follow up on the same.iii.That about the same time, she had lost their "adopted son one John Kimatta Mukui she was in no condition to and was unable to attend to the matter of this court case immediately thus unable to promptly give the necessary substantive instructions to her Advocates on record for the filling of the Defence and the attendant pre-trial documents.iv.That she earnestly apologized to the court and to the other party for the delayv.That she humbly entreats the court to retain and admit her Statement of Defence, and to deem it as duly and properly filed.vi.That no prejudice at all to the Plaintiff, and no delay of the suit, has been occasioned by the late filing of the Defence herein, Indeed, the main suit has already been fixed for Hearing on 15/10/2024, the court having noted that parties have complied with the pre-trial requirements.vii.That indeed, her Defence herein raises multiple serious and triable issues, to wit, the plaintiff's locus standi, limitation of time, sub judice, jurisdiction of the court. incompetence/unsustainability of the supposedly representative suit, and most substantively, who between the Plaintiff and the Defendant owes the other money. and a possible set-off.viii.That the rest of the issues raised by the Plaintiff/Applicant in his Supporting Affidavit dated 10th July, 2024 are irrelevant to the present application. The matters relating to the alleged Succession Citation Cause No. E012 of 2021, the previous irregular default Judgement, and the application to set aside the same, are all matters which were raised by the Plaintiff and which the court no doubt considered and dealt with in the previous application which culminated in the Ruling dated 25/04/2024. The said matters are not open for re-litigation herein.ix.That furthermore, as is clear and evident from the court record, the aforesaid Citation Cause No. E012 of 2021 and any orders therein, as referred to by the Plaintiff was Not against her but against one Hilda W. Kimatta, who is not her as she is Hilda Muthoni Mukui.x.That so too, even the Limited Grant Ad Litem dated 5th May, 2023 obtained by the Plaintiff against her (resulting from the said Citation), and which was used to file this present suit against her, may be legally questionable and invalid. Firstly, the said Grant ad Litem was not issued against the named Citee in the said Citation: it was instead issued against her, But more importantly, by the time the Grant ad Liten was issued, she had already obtained a full Grant of Letters of Administration Intestate dated 5th December, 2022, in Nakuru High Court Succession Cause No. E90 of 2022. xi.That in view of all the foregoing matters, and in the interest of Justice and of the constitutional imperative to a fair hearing, she urges the court to sustain her Statement of Defence, and to allow the suit to proceed to its logical conclusion.

4. Applicants and the Respondents filed written submissions on the 23rd July 2024 and the 26th August 2024 pursuant to directions issued 10th July 2024.

Applicants Submissions 5. The Applicant refined two issue for determination:i.Whether the Plaintiff/Applicant's Application is merited.ii.Who shall bear the costs of the instant Application.

6. That, it is the submission of the Plaintiff/Applicant that the Application dated the 8th day of July, 2024 is merited as failure to grant the orders sought in the subject Application would be tantamount to the Honorable Court acquiescing to the whims of the Defendant/Respondent to stifle the Court process herein and delay the conclusion of the dispute. It would also create the perception that somehow the defendant is immune to the peremptory prescriptions of the rules that are intended as articulated in Articles 159 of the Constitution at ensuring that justice is dispensed expeditiously and economically.

7. That, the Plaintiff/Applicant's Application seeks for orders to strike out the Defendant/Respondent's Statement of Defence dated the 28th day of June, 2024 and its accompanying documents and the reinstatement of the default judgment in favor of the Plaintiff/Applicant. The said prayers are borne from a series of mala-fides attempts by the Defendant/Applicant to scuttle the process of this Honorable Court and in the process frustrate the spirited efforts by the Plaintiff/Applicant to obtain the sum of KES 28, 933, 698/ from the estate of the late Dominic Mukui Kimatta. The said sum had been paid to the former by the late Plaintiff/Applicant to settle on his behalf, the decree of the Honorable Court in Nakuru HCCC 38 of 2003 but which sums the late Advocate misappropriated.

8. That, the subject mal-fides attempts by the Plaintiff/Applicant to scuttle the process of the Honorable Court which will be comprehensively documented in this submissions, visit the core of the principles of a just, speedy and affordable resolution of disputes as distinctly contemplated under the auspices of the overriding objective, colloquially termed 'the Double Oxygen principle."

9. That the edicts of the Double Oxygen Principle were restated by the Court in Francis Atanasio Kithure v County Government of Meru; Ethics & Anti-Corruption Commission (Interested Party) [2021] eKLR where the Honorable Court quoted with approval the decision of the High Court in Judicial Review 2 of 2017 Republic-vs-National Government Constituency Development Fund Board & another (2017) eKLR where the former expressed itself as follows:“The double O's in the phrase Overriding Objectives are what coined what is today famously known as the term Oxygen Principle. In Hunker Trading Company Limited vs Elf Oil Kenya Limited perhaps the first case to be grounded on the new provisions the Appellate Jurisdiction Act (Sections 3A and 3B), it was held that section 1A of the Civil Procedure Act came in to provide facilitation of just, expeditious and proportionate resolution of civil disputes in Kenya as the overriding objective of the Act. It states: -The overriding objective of this Act and rules made hereunder is to facilitate the just, expeditious, proportionate and affordable resolution of civil dispute governed by the Act." (Emphasis Ours).

10. That the imperative nature of the observance of the 'Double Oxygen' principle was enunciated in Cyril J Haroo & another v Uchumi Services Limited & 3 others [2014] eKLR where the Court stated as follows:“While the enactments of the double OO Principle is a reflection of the central Importance the court must attach to case management in the administration of justice we wholly endorse the holding in the Australian Case of Purpose Pty Limited Vs Council of the City of Sydney (2007) NSWLEL, 63 where the court underscored that in exercising the power to give effect to the principle, it must do so judicially and with proper and explicable foundation." (Emphasis Ours).

11. That, from the inception and eventual commencement of the present suit, the Defendant/Respondent has demonstrated brazen unwillingness and apathy in taking part in the proceedings herein which conduct militates against the provisions of the 'Double Oxygen' principle. It is only fair and just that this Honorable Court grants the Plaintiff/Applicant the orders sought in the subject Application and proceeds to strike out the Defendant/Respondent's Statement of Defence that was filed out of time despite several gratuitous extensions granted to the former to undertake said filing within the extended time.

12. That even before the suit itself was filed, the defendant did not hide her intention to deploy every contrivance to scuttle the process. She is being sued as the widow of the late advocate Dominic Mukui Kimmatta who was the advocate for the late Narwar Singh Bhogal on behalf of whose estate the suit is conceived and instituted. Under the Law of Succession, she stood in priority over others as the administrator of the estate of the late advocate.

13. Before the suit was filed therefore the plaintiff requested her to take out letters to facilitate the lodgment of the suit and adjudication of the claim. She would not oblige. The plaintiff was therefore forced to cite her and her concerted efforts to defeat the process are well documented in the plaintiff's replying affidavit dated 5th March 2024 filed on the 6th March 2024. The same is discussed exhaustively by lady Justice Matheka in her Ruling dated the 2nd July 2022 in Nakuru High Court Succession Cause No. 012 of 2021 In the matter of the Estate of Dominic Mukui Kimatta annexed to that affidavit. Thus, the court can see that the claim herein a much longer and tortuous history before its institution because the defendant is hell-bent to delay and frustrate it.

14. That, when the present suit was filed on the 22nd day of June, 2023, the Defendant/Respondent was served with summons to enter appearance on the 3rd day of July, 2023. The Defendant/Respondent did not file a defence or a Memorandum of Appearance to said suit and on the 19th day of July, 2023, the Plaintiff/Applicant's Advocates on Record proceeded to file a request for judgment in default of appearance by the Defendant/Respondent. Even after being notified by the Plaintiff/Applicant's Advocates on Record of the impending endorsement of the interlocutory judgment on record against her, the Defendant/Respondent did not take any steps to seek leave of the Court to file her statement of defence. It is only after the Plaintiff/Applicant's Advocates fixed the matter for mention to have the endorsement of judgment corrected to be final rather than interlocutory that the Defendant/Respondent's Advocate was spurred into action.

15. That following advice by the Honorable Court that the Defendant/Respondent's Advocates should make a formal application for leave to file their defence out of time, the former took more than six (6) months before making the said application in total temerity of the Court order dated the 3rd day of October, 2023. It must be noted that the subject court order had granted the Defendant Respondent a period of fourteen (14) days within which to file her Statement of Defence. Despite the Application being made out of time, the Honorable Court delivered a ruling dated the 25th day of April, 2024 that granted the Defendant/Respondent leave to file her defence within a period of thirty (30) days of the date of the ruling. True to her past conduct in the matter that sought to stifle the timeous resolution of the instant dispute, the Defendant/Respondent took more than sixty (60) days to file and serve her Statement of Defence the same being outside the timeline gratuitously granted by the Honorable Court.

16. That, the instant Application is merited because the Defendant/Respondent's repeated violations of the law and disregard to court orders are endemic and ought not to be countenanced. This Honorable Court has extended enough leniencies to the Defendant/Respondent despite her Infractions and her Statement of Defence is clearly an abuse of the process of the Honorable Court.

17. That the Defendant/Respondent's purported justifications for falling to file her defence within the requisite timelines Vide her Replying Affidavit dated the 19th day of July, 2024, the Defendant/Respondent opposed the subject Application. In Paragraph 4 of the subject response, the Defendant/Respondent contends that following the ruling of the Honorable Court dated the 25th day of April, 2024 where the Honorable Court granted her thirty (30) days to file her Statement of Defence, her Advocates on record wrote to her informing her of the contents of said ruling and sought her instructions regarding the filing of the Defence and Pretrial documents. According to the Defendant/Respondent, this communication was sent to her vide her email and she purportedly 'missed and did not see the email on time' as it had been sent to her spam email. She reiterated that this was inadvertent as she only learnt of the existence of the email when she was phoned by her Advocates regarding the same.

18. That, the foregoing averment by the Defendant/Respondent is bereft of any iota of truth since the same smirks of deceit and the same is a disingenuous ploy by the former to evade the consequences of her actions of disregarding court orders. Even to a lay man that is untrained in the law, the said averments would not pass as truth due to the ambivalent nature of the assertions therein. While on the one hand, the Defendant/Respondent claims that she did not see her Advocates' email regarding the subject cause, she also claims that when she finally read the said email, she was unable to give instructions to her Advocates on record to respond to the same since she was purportedly bereaved.

19. That the Defendant/Respondent however failed to annex evidence regarding the purported bereavement and it is therefore unreasonable for her to expect the Honorable Court to return a finding in her favor without allaying the requisite evidence as probative of her averments. A copy of the death certificate of the purported "adopted son' or any other related document would suffice as proof of said bereavement. In any case, even if it is true that the Defendant Applicant was bereaved as alleged, it is conceivable to assert that she was so distraught as to fail to give instructions to her Advocates on record to defend the subject suit. All she was required to do was to ask her Advocates on record to take up his defence in the matter, file a Memorandum of Appearance and defence on her behalf. She was not required to personally present herself to court or registry to undertake said defence. The Defendant/Respondent's averments to this end are therefore unmerited.

20. That in Paragraph 7 of the Defendant/Respondent's Replying Affidavit, she alleges that the Plaintiff/Applicant would not suffer any prejudice if the Honorable Court failed to allow his Application to strike out the Defendant/Respondent's Statement of Defence. It is the Plaintiff/Applicant's submission that nothing could be further from the truth since he is being kept off his funds amounting to KES 28, 933, 698/- which he had paid to his erstwhile Advocate, the late Dominic Kimatta, to settle on his behalf the decree of the Honorable Court in Nakuru HCCC 38 of 2003 but which sums the late Advocate misappropriated, The Plaintiff/Applicant was forced to use alternate funds to settle the said decree which funds would have been used in a viable business venture to generate profits.

21. That, from the foregoing, it is apparent that the justifications raised by the Defendant/Respondent in answer to the Plaintiff/Applicant's Application are unmerited and meant to hoodwink this Honorable Court to derail the course of justice. The Defendant/Respondent was given ample time to file her Statement of Defence in addition to being gifted additional time outside the statutorily delimited timelines for filing the same but still failed to abide by the orders of the Honorable Court. The same ought to be struck out in limine.

22. The Applicant further urges to be awarded cost.

Respondent’s Case 23. In addition to the concession on oath, the Respondent submits thatthe Application does not lie and is not provided for in law:

24. That the instant application is premised on Order 2 Rule 15, Order 7 Rule 1, Order 50 Rule 8 and Order 51 Rule 1 of the Civil Procedure Rules, 2010, Section IA, IB and 34 of the Civil Procedure Act. The application seeks for striking-out of the Defence herein for having been filed out of time which she submits that the application is misplaced.

25. The application is expressly premised on Order 2 Rule 15 of the Civil Procedure Rules which only provides for striking-out of pleadings based on its contents, not for being filed out of time. The said Rule provides for striking out of pleadings for failure to disclose a reasonable cause of action or defence, for being scandalous frivolous and vexatious, for prejudicing embarrassing or delaying the fair trial of the case, or for being otherwise an abuse of the court process. And even then, the impugned pleading may still be saved by the Court by way of Amendment as opposed to striking out. In the instant application, none of the foregoing Rule 15(1) infractions have been contended or alleged as against the Defence herein. The sole complaint is that the Defence was filed out of time. The said Order 2 Rule 15(1) does not provide for striking out of a Defence for being filed out of time.

26. That, Order 2 Rule 15 (1) provides thus;“15. (1)At any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that-(a)It discloses no reasonable cause of action or defence in law; or(b)It is scandalous, frivolous or vexatious; or(c)It may prejudice, embarrass or delay the fair trial of the action; or(d)It is otherwise an abuse of the process of the court, and may order the suit to be stayed or dismissed or judgment to be entered accordingly, as the case may be."

27. That the Defence raises several triable issues, to wit, the Plaintiff's locus standi, limitation of time, sub judice, jurisdiction of the court, incompetence/unsustainability of the supposedly representative suit, and most substantively, who between the Plaintiff and the Defendant owes the other money, and a possible set-off.

28. That, no prejudice or delay has been occasioned to the fair trial of this suit by the delayed filing of the Defence. Indeed, the court already gave a Hearing date for the main suit for 15th October, 2024, after establishing that all parties had complied with all pre-trial filings. That Hearing date has since been vacated by the court, following the filing of the instant application by the Plaintiff. So the only party who has occasioned any delay in the trial of this suit is in fact the Plaintiff, not the Defendant. Reference is made to the case of Spinners and Spinners Ltd. v Kimilili Wholesalers (K) Ltd. (2021) KLR, while expounding on the scope of Order 2 Rule 15, the Court held that,“...... Consequently, a party applying for striking out a defence on the grounds listed under Order 2 Rule 15(1) must persuade court that the defence falls within the well-known meaning of the words listed under Order 2 rule 15 (1) and he or she should specify whether it is the whole defence or only parts thereof and if parts, which ones, offend the rules of pleading28. Order 2 rule 15(1) discloses the words (grounds) upon which a pleading can be struck out. In particular, a pleading can only be struck out if it discloses no reasonable cause of action or defence in law; or it is scandalous, frivolous or vexatious; or it may prejudice, embarrass or delay the fair trial of the action and lastly if it is otherwise an abuse of the process of the court..."

29. That the application and the Defence clearly do not fall within the said confines of Order 2 rule 15 (1). Reference is made to the case of Secretary and Treasurer, School Management Committee of Sir Ali Bin Salim Primary School & another v Francis Bahati Diwani & 2 others, the court faced with a similar issue to the one herein, where the Plaintiff had moved the Court to strike-out the Defendant's Defence for having been filed out of time, the Court pressed itself thus (parag. 14 & 15 of Ruling):“The question that the arises is this: what happens to a defence that is filed after 14 days from the date when the Defendant enters appearance considering that judgment cannot be entered until the matter is heard. Can such a Defence be struck out so as to allow the claim to proceed as if it is undefended"In my view, an omission to fully comply with a provision of the Rules is an irregularity which except in very clear cases, may be cured. Striking out of a pleading, especially where the Rule does not expressly provides so, which has been filed out of time is an extreme measure"

30. The Respondent urges the court to similarly so find, that striking-out the Defence herein would be too draconian and extreme, especially seeing as no prejudice at all has been occasioned to the Plaintiff by the filing of the said Defence.

31. The Respondent submits that the Principles that guide striking out of pleadings post the 2010 Constitution, is long settled that the court should be more inclined to serving substantive justice as opposed to technical justice, and the court will be averse to striking out pleadings except in the most exceptional of cases where there is clearly no possibility at all of breathing any life into the pleadings. This here is no such case. Reference being the case of Saudi Arabian Airlines Corporation v Sean Express Services Ltd [2014] eKLR. the Court while interrogating the Plaintiff's application to strike out the Defendant's Defence, outlined the following governing principles;“(17)I need not re-invent the wheel on the subject of striking out a defence.............. Except, I can state comfortably that these principles now draw, not only from judicial precedent, but from the principles of justice enshrined in the Constitution especially in Article 47, 50 and 159. The first guiding principle is that, every Court of law should pay homage to its core duty of serving substantive justice in the judicial proceeding before it, which explains the reasoning by Madan JA in the famous DT DOBIE case that the Court should aim at sustaining rather than terminating suit. That position applies mutatis mutandis to a statement of defence and counter-claim. Secondly, and directly related to the foregoing constitutional principle and policy, is that courts should recognize the act of striking out a pleading (plaint or defence) completely divests a party of a hearing, thus, driving such party away from the judgment seat; which is a draconian act comparable only to the proverbial drawing of the "Sword of the Damocles". Therefore, the power to strike out a suit or defence should be used sparingly and only on the clearest of cases where the impugned pleading is 'demurer or something worse than a demurer' beyond redemption and not curable by even an amendment. Thirdly, in case of a defence, the court must be convinced upon looking at the defence, that it is a sham, it raises no bonafide triable issue worth a trial by the court. And a triable issue need not be one which will succeed"

32. That so too, in the case of Spinners and Spinners Limited (supra), the Court held that;“...The principles guiding the striking out of pleadings and cases are now well settled.These principles, as set out in DT Dobie & Company (K) Ltd vs. Muchina [1982] KLR 1, are to the effect that that no suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action and is so weak as to be beyond redemption and incurable by amendment..."

33. That, the time-honored decision of the Court of Appeal in the case of Lalji t/a Vakkep Building Contractors v Carousel Limited [1989] eKLR, the Court of Appeal determined that“...... A trial must be ordered if a triable issue is found, or one which if fairly arguable is found to exist..."

34. Further reliance is placed in the Francis Bahati Diwani case (supra), Angote J, emphasized that;“...In my view, an omission to fully comply with a provision of the Rules is an irregularity which except in very clear cases, may be cured. Striking out of a pleading, especially where the Rule does not expressly provides so, which has been filed out of time is an extreme measure which is resulted to in the clearest of cases where the court, after considering all the facts and circumstances of the case, comes to the conclusion that a party is abusing the process of the court.That the court ought to look at the issues raised in a holistic manner before making a decision as to whether it can strike out a pleading which has been filed contrary to the provisions of the Rules, because the Rules themselves allow the court, in appropriate cases, and upon such terms as the justice of the case may require to enlarge time where a limited, time has been fixed for doing any act or taking any proceedings under the Rules.That, the approach of the court should therefore not to strike-out a pleading but to first examine whether the striking-out will be in conformity with the overriding objective set out in the Civil Procedure Rules and Article 159 of the Constitution..."

35. That the Court of Appeal in the case of Trust Bank Limited v Amalo Company Limited [2002] KLR, also aptly rendered itself on the matter of the fate of pleadings filed out of time, thus;“... The principle which guides the court in the administration of justice when adjudicating on any dispute is that where possible disputes should be heard on their own merit. This was succinctly put a while ago by Georges, C.J. (Tanzania) in the case of Exsanji and Another Vs. Solanki [1968] EA at page 224. "The administration of justice should normally require that the substance of all disputes should be investigated and decided on their merit and that errors should not necessarily deter a litigant from the pursuits of his right."

36. The spirit of the law is that as far as possible in the exercise of judicial discretion, the court ought to hear and consider the case of both parties in any dispute in the absence of any good reason for it not to do so.

37. The Learned Judge was faulted for not considering and following what this Court said recently in the case of Central Bank of Kenya vs. Uhuru Highway Development Ltd. and others CA 75 of 1998, whereby Bosire, J.A had the following to say on this same issue: -“I am therefore, unable to subscribe to the view expressed by Mr. Rebello that documents filed out of time in response to an application are necessarily invalid and should not be looked at. To my mind a court is obliged to consider them unless for a reason other than mere lateness, it considers it undesirable to do so, Besides, the learned judge in the court below fell into error when he said that a failure to file grounds of opposition automatically entitles the applicant to orders ex-parte".This is our view in this matter. The appellant had the right to be heard on the documents he had put before the court and were on record. It cannot be said that he did not offer an explanation for the delay in serving the documents to the opposite party..."

38. That in view of the foregoing matters, the Respondent urges the court to uphold the principles set out in the case of Saudi Arabian Airlines Corporation (supra), to wit, that:“the Court should pay homage to its core duty of serving substantive justice and to take into account the constitutional principle and policy that striking out a pleading completely divests a party of a hearing, thus driving such party away from the Judgment seat".

39. The Respondent urges the Court to decline the application to strike out the Defence, and to instead allow the suit to proceed to hearing and determination on merit. Striking-out the Defence would deny the Defendant her constitutionally enshrined right to fair trial, and her right not to be condemned unheard, and it would unfairly lock out the Defendant from the seat of justice.

Analysis and Determination 40. The Respondent has conceded to filing her pleadings clearly out of time and argues the same is a procedural flaw that can be cured. I do think not and when the Respondent sought leave to file defense out of time she clearly appreciated the import of time and the rules of the court.

41. I am convinced that by the Respondent presumptuously filing her defence out of time and without leave of the court qualify such pleadings being struck-out for contravening Order 2 Rule 15 (d).

42. No plausible or valid reason has been advanced as to why the Respondent failed to utilize the window provided in the court’s ruling dated 25th April 2024.

43. While the Respondent has advanced extensive arguments against striking-out of the defence filed, it is noteworthy that, the court ruling dated 25th April 2024 allowing filing of defence out-of-time lapsed and that the same was never appealed against or a review sought.

44. By filing the statement out of time and without leave of the Court the Respondent was the author of her own misfortune. I do not think such pleadings filed are curable and that the same qualify for striking-out.

45. I find favor with and allow the Application dated 8th July 2024 on the following terms;i.The statement of defense dated 28th June 2024 and all accompanying documents is hereby struck-out.ii.The Judgment in default dated 19th July 2023 is hereby reinstated.iii.The costs of this Application are awarded to the Plaintiff/Applicant.It is so ordered

DATED, SIGNED AND DELIVERED VIA TEAMS PLATFORM AT NAKURU ON THIS DAY OF 17TH DAY OF JUNE, 2025. ........................S. MOHOCHIJUDGE