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ELCAllowedELC NO. E010 OF 2021· [2021] KEELC 2359 (KLR)

Richard Makara Gitau v Shadrack Maina Mahuro & 3 others [2021] KEELC 2359 (KLR)

Environment & Land Court
29 July 2021
JKJ G Kemei
735 words in judgment
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The bottom line

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Kenya's Environment & Land Court allowed defendants to file their defence affidavit late, prioritising a fair hearing over strict procedural timelines.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Environment and Land Court at Murang'a in ELC No. E010 of 2021. The four Defendants applied by Notice of Motion dated 28/5/2021 to set aside consequential orders made in default of filing a Replying Affidavit, and for leave to file, or have deemed filed, a Replying Affidavit out of time in response to the Plaintiff's Notice of Motion dated 13/4/2021, which sought an injunction. The application was supported by an affidavit of the Defendants' advocate, Mr Nyasani Evanson Nyamaronge, who admitted the late filing and cited challenges in consolidating instructions, including the 2nd Defendant's daughter's illness and COVID-19 isolation, and the 4th Defendant's busy public office as Deputy County Commissioner. The application was unopposed. Applying the Supreme Court's principles in Nicholas Kiptoo Arap Korir Salat v IEBC on extension of time, the court found the reasons for the delay tenuous for want of evidence, but held that the delay was not inordinate, that there was no intent to defeat justice, and that substantial justice under Article 159(2)(d) favoured a hearing on the merits. The court also noted the Plaintiff's counsel's letter of 21/6/21 consenting to the application. The court allowed the application, directed the Applicants to file and serve their Replying Affidavit within 14 days, ordered the Plaintiff to fix the hearing of the 13/4/2021 application expeditiously, and directed that each party bear their own costs of the application. The ruling was delivered online on 29 July 2021 by J G Kemei, Judge.

Key legal issues

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01

Whether the unexplained or tenuous reasons for the delay in filing a Replying Affidavit warrant denial of leave to file out of time

Holding

Although the reasons were found tenuous for want of evidence, the delay was not inordinate, no prejudice was shown, and leave was granted in the interest of substantial justice

Reasoning

The court applied the Salat principles on extension of time. It found the reasons for the delay tenuous for want of supporting evidence, but noted nothing suggested the Applicants intended to defeat justice. Balancing the delay against the risk of an unopposed drastic injunction, and guided by Article 159(2)(d), it exercised its discretion in favour of a hearing on the merits. The Plaintiff's counsel's letter consenting to the application also weighed in favour of allowing it.

p. 2

Legal principles established

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  • Extension of time is an equitable remedy available only to a deserving party at the discretion of the Court, and the applicant bears the burden of explaining the delay and showing absence of prejudice
  • Where the delay is not inordinate and no intent to defeat justice is shown, the Court should lean towards doing substantial justice under Article 159(2)(d)

Court orders

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  1. 1.The Defendants' application dated 28/5/2021 is allowed
  2. 2.The Applicants to file and serve their Replying Affidavit to the Notice of Motion dated 13/4/2021 within 14 days of the date of the Ruling/Directions
  3. 3.Thereafter the Plaintiff to expeditiously fix dates for the hearing of the application dated 13/4/2021 at the Registry
  4. 4.Each party to bear the cost of the application

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (1)

  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others
    Application No. 16 of 2014 [2014] eKLR
Jurisdiction invoked
Article 159(2)(d) of the Constitution (duty to do substantial justice) in an interlocutory application under the court's inherent discretion

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Richard Makara Gitau v Shadrack Maina Mahuro & 3 others [2021] KEELC 2359 (KLR)", Case Analysis (2021). ELC NO. E010 OF 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2359/eng@2021-07-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.