Nelius Wanjiru Wanjiku v Kenya Broadcasting Corporation & Muthoni Gitau [2019] KEHC 9559 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MURANG’A

CIVIL SUIT NO. 67 OF 2013

NELIUS WANJIRU WANJIKU....................................................PLAINTIFF

VERSUS

KENYA BROADCASTING CORPORATION................1ST DEFENDANT

MUTHONI GITAU............................................................2ND DEFENDANT

RULING

1. The plaintiff prays that the statement of defence be struck out.

2. The reasons are two-pronged: Firstly, that the pleading was filed out of time without leave; and, secondly, that it is a mere denial that does not adequately traverse the plaintiff’s claim.

3. The notice of motion is dated 4th June 2014.

4. The motion is contested by a replying affidavit sworn on 19th June 2017 by Paul Jilani, the Corporation Secretary of the 1st defendant.

5. The defendants filed written submissions way back on 19th June 2017. On 23rd May 2018, the court directed the applicant to file her submissions within seven days. In default, she would be deemed “not to wish to make any submissions”. The applicant’s submissions were filed out of time on 6th June 2018.

6. Striking out a pleading is a draconian measure to be employed sparingly. Wambua v Wathome [1968] E.A 40, Coast Projects Ltd v M.R. Shah Construction[2004] KLR 119.

7. The court must also pay heed to the overriding objective to do justice to the parties. See Article 159 of the Constitution and sections 1A and 1B of the Civil Procedure Act.  See also Harit Sheth v Shamas Charania, Court of Appeal at Nairobi, Civil Application No 68 of 2008 [2010] eKLR.

8. The High Court is a court of record. The defendant was served with the summons to enter appearance;and, the plaint on 28th January 2014. This is evident from the affidavit of service by Patrick Kinyua sworn on 11th February 2014.

9. The defendants entered appearance on 13th February 2014. The statement of defence was however not filed until 6th March 2014. That fact is conceded at paragraph 4 of the replying affidavit.

10. Order 7 Rule 1 of the Civil Procedure Rules is mandatory: the defendant 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.

11. The statement of defence was filed out of time and without leave. To date, there is no application to enlarge the time within which to file and serve the defence. I readily find that the statement of defence is a nullity. That finding is sufficient to dispose of the application.

12. I accordingly order that the statement of defence dated 4th March 2014 and filed on 6th March 2014 be and is hereby struck out. The plaintiff shall now set down the suit for formal proof.

13. I grant the plaintiff costs of the application.

It is so ordered.

DATED, SIGNED and DELIVERED at MURANG’A this 5th day of March 2019.

KANYI KIMONDO

JUDGE

Ruling read in open court in the presence of:

No appearance by counsel for the plaintiff.

No appearance by counsel for the defendants.

Ms. Dorcas and Ms. Elizabeth, Court Clerks.