Whether the Statement of Defence should be struck out
30.Order 7 Rule 1 of the Civil Procedure Rules provides:-
31.The suit herein was instituted by way of a Certificate of Urgency in the Environment and Land Court being ELC Case No. 90 of 2017. The applicant filed a Notice of Motion, Supporting Affidavit and Plaint with its accompanying documents on 24th May 2017. The applicant served the respondent with the said pleadings on the same date. The respondent filed a Notice of Appointment through the firm of Waruhiu K’owade & Ng’ang’a Advocates on 25th May 2017. The matter was then transferred to the High Court on 12th March 2018 following the Court of Appeal decision in Co-operative Bank of Kenya Limited vs Patrick Kangethe Njuguna & 5 Others  eKLR. On 13th April 2021, the applicant filed a Request for Interlocutory Judgment. The applicant annexed its Affidavit of Service as proof of Service whereby the process server averred that he served the respondent bank on 24th May 2017 with the Plaint, Verifying Affidavit, List of documents and witnesses, Plaintiff’s witness statement and Bundle of documents. He further averred that on 16th June 2017 he served the firm of Waruhiu Kowade & Nga’ng’a Advocates with Summons to Enter Appearance who were on record for the respondent.
32.Order 5 Rule 8 (1) and (2) of the Civil Procedure Rules provides:-1)Wherever it is practicable, service shall be made on the defendant in person, unless he as an agent empowered to accept service, in which case service of the agent shall be sufficient.2)A summons may be served upon an advocate who has instructions to accept service and to enter an appearance to the summons and judgment in default of appearance may be entered after such service.
33.Clearly, a service upon an advocate who has instructions to accept service and to enter appearance is good for purposes of default judgment under Order 5 Rule 8(2) of the Civil Procedure Rules.
34.The respondent herein filed a Notice of Appointment on 25th May 2017 which is a clear indication that they had instructions to act for the respondent and they were on record for the respondent. The respondent did not produce any evidence to indicate that in fact no such service was done in accordance with the rules. The respondent merely renounced instructions on part of the counsel to accept service on their behalf. Consequently, I find that service upon the respondent was proper within the provision of Order 5 Rule 8(2) of the Civil Procedure Rules.
35.The respondent state that they delayed in filing their defence because the applicant was filing numerous applications thereafter the matter went through mediation and then covid 19 happened. The applicant on the other hand states that the reasons for delay are not plausible and therefore the defence ought to struck out.
36.Order 2 Rule 15 of the Civil Procedure Rules provides:-
37.The principles which guide the court in exercising discretion in striking out pleadings have been stated in D.T Dobie & Co. (Kenya) Ltd vs Muchina & Another  KLR 1.The court would not strike a pleading if it discloses an arguable case or raises a triable issue. Madan JA (as he then was) stated as follows in the said case:-
38.Similarly, in The Cooperative Merchant Bank Ltd vs George Fredrick Wekesa Civil Appeal No. 54 of 1999 the Court of Appeal stated:-
39.Whereas the power to strike out pleadings is a drastic step that should be used sparingly and only in the clearest of cases, a balance must be struck between the principle and the policy consideration that a plaintiff should not be kept away from his judgment by an unscrupulous defendant who files a defence which is a sham simply for the purpose of delaying the finalization of the case. Kenya Commercial Bank vs Suntra Investment Bank Ltd  eKLR.
40.It is noted from the record that this case was transferred to this court from ELC court where it had been filed in 2019. the ELC curt had herd and determined two applications of the applicant by the time of transfer. The respondent proceeded with the applications and omitted a very crucial step of filing defence. A hearing date was taken by the parties before this court on 22/03/2021 and parties took directions on the applicant’s application dated 09/06/2022. The parties were given time to exchange submissions on the said application. It is during this period that it dawned on the respondent that it had not filed defence. The application was filed a few days before the date of mention to confirm compliance on submissions. As such, it is not correct to say that the defence was not filed on time because the applicant had filed numerous applications. The record supports the fact that the failure was an oversight on part of the respondent.
41.The second explanation for late filing was said to be the setting in of the Covid-19. During that period, the court downgraded its operations from mid-March 2021 for about 30 days and then resorted to e-filing which continued for several months and was later adopted as the norm. By the time Covid-19 set in this case had been in court for two years. This delay of two years has not been explained by the respondent. The delay during Covid -19 has not been explained either because e-filing was introduced only a few weeks after the courts downgraded its operations. The delay is just an excuse and does not aid the respondent who is guilty of three (3) years indolence.
42.The authorities relied on herein stipulated that the power to strike out pleadings is a drastic step that ought to be exercised only in the clearest of cases. It is therefore this court’s duty to strike a balance between a plaintiff who should not be kept away from fast determination of its case where defence which is a sham is filed simply for the purpose of delaying the finalization a case and defendant’s constitutional right of being heard under Article 50 of the Constitution.
43.The issue herein is whether the respondent’s statement of defence raises any triable issues. In Kenya Trade Combine Ltd vs M. Shah (Civil Appeal No. 193 of 1999) (unreported) this court said this:-
44.So what amounts to a triable issue? The court in the case of Equatorial Commercial Bank Limited vs Jodam Engineering Works limited & 2 Others (2014) eKLR had occasion to determine this question. In its decision, Kasango J. stated as follows:-
45.In the case of Olympic Escort International Co. Ltd & 2 Others vs Parminder Singh Sandhu & Another (2009) eKLR, the Court of Appeal held that for an issue to be triable, it has to be bona fide. The court stated as follows:-
46.Similarly in Kenya Trade Combine Ltd vs Shah, Civil Appeal No. 193 of 1999, the Court of Appeal stated as follows:-
47.A triable issue is said to exist if there is a dispute in the facts, which dispute can only be resolved after ventilation in a full hearing. In the case of Giciem Construction Company vs Amalgamated Trade & Services LLR No. 103 (CAK) this court stated:-
48.The defence raises several issues which include:-i.Whether the applicant breached the terms of the charge documents.ii.Whether the applicant defaulted in its loan obligations.iii.Whether the respondent’s right of foreclosure had crystallized andiv.Whether the defendant followed due process in exercising its statutory power of sale.In my considered view, these are issues that can only be determined through evidence of the parties in a hearing. In that regard, I am convinced that the statement of defence filed on 26th March 2021 raised triable issues and that it is appropriate that the respondent be given his right of being heard. The defendant by failing to file its defence on time and over a long period for that matter has occasioned delay in the disposal of this suit and wasted time of the opposite party. Due to this shortcoming, I hereby find that the respondent ought to be penalised by way of costs.
49.Consequently, this court declines to grant the prayers in the Applicants application dated 9th June 2021. How3ever, the prayers in the application dated 30th September 2021 are granted in the following terms:-a)That leave is hereby granted to the respondent to file his defence out of time.b)That the defence filed on 26th March, 2021 is hereby deemed to be properly filedc)That the respondent to meet the costs of this consolidated application which will abide in the suit.
50.It is hereby so ordered.