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ELCPartially AllowedNot stated in the judgment· [2022] KEELC 2669 (KLR)

Kalaiya v Cheruiyot & 5 others (Environment and Land Case E394 of 2021) [2022] KEELC 2669 (KLR)

Environment and Land Court
23 June 2022
OMOguttu Mboya
3,930 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Late court documents were struck out as a nullity, but the defendants got a fresh 14 days to refile properly, so the land dispute will still be heard.

What this practically means

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Executive summary

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This was a ruling on an oral objection taken by the Plaintiff's counsel at the commencement of hearing, seeking the striking out and expungement of the Statement of Defence and bundle of documents filed by the 2nd, 3rd, 5th and 6th Defendants in a land dispute over L.R No. 1/1392 along Ngong Road, Nairobi. The Defendants, Government officers/departments claiming the property belongs to the Zambian High Commission, conceded filing their defence out of time and without leave, contrary to the 14-day timeline set by the court on 10th March 2022. The court framed two issues: the legal consequence of out-of-time filing, and whether it retained discretion to extend time. On the first, it held, following the Supreme Court's decision in Salat v IEBC, that documents filed outside timelines and without leave are a nullity amenable to expungement, and struck out the defence and documents. On the second, invoking Section 95 of the Civil Procedure Act and the Chemwolo and Patriotic Guards authorities, it held that mistakes of counsel should not lock a party out of the seat of justice, particularly given the public interest in finally determining ownership of property claimed by the Zambian High Commission. The court struck out the impugned documents but granted the Defendants 14 days to file compliant pleadings, allowed the Plaintiff time to reply and file further documents, directed filing of indexed bundles, set the matter for full hearing, and ordered that costs of the application abide the cause.

Key legal issues

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01

Legal consequence of filing pleadings and documents out of time without leave

Holding

Documents filed outside court-ordered timelines and without leave are a nullity notwithstanding Order 50 Rule 7 of the Civil Procedure Rules 2010, and are amenable to being struck out and expunged

Reasoning

The court found that the 2nd, 3rd, 5th and 6th Defendants filed their Statement of Defence on 4th April 2022 and served it on 28th May 2022, well outside the 14 days granted on 10th March 2022. Relying on the Supreme Court's decision in Salat v IEBC, which binds the court, it held that a party must first seek extension of time before filing; documents filed in breach of an order are ipso jure a nullity and cannot be condoned irrespective of excuse.

p. 5
02

Whether the court retains discretion to extend time notwithstanding the expunction of the pleadings

Holding

Yes; the court has inherent jurisdiction under Section 95 of the Civil Procedure Act to extend time, and did so because the dispute over ownership of the suit property bears public interest and should be determined on the merits

Reasoning

The court observed that the lapse was attributable to counsel, not the Defendants, that the hearing had not commenced, and that no prejudice not compensable by costs had been demonstrated. Given the public interest dimension of a dispute implicating the Zambian High Commission and Kenya-Zambia relations, the court extended time by 14 days for filing compliant pleadings and documents.

p. 8

Legal principles established

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  • A document filed out of time and without leave of the court is a nullity and cannot be validated without first obtaining an extension of time
  • Court orders are meant to be complied with, and a party who fails to comply must seek leave before filing documents
  • The court's power to enlarge time under Section 95 of the Civil Procedure Act is discretionary but must be exercised judiciously
  • A mistake by counsel should not, absent fraud, drive a party away from the seat of justice

Court orders

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  1. 1.The Statement of Defense dated the 29th March 2022, filed on the 4th April 2022, together with the documents attached thereto, be and is hereby struck out and expunged from the record of the court for having been filed out of time and without leave of the court
  2. 2.Liberty granted to the 2nd, 3rd, 5th and 6th Defendants to file and serve a compliant Statement of Defense and requisite documents within 14 days from the date hereof
  3. 3.The Plaintiff granted liberty to file Reply to Defense, if any, within 14 days from the date of service of the defense
  4. 4.The Plaintiff granted liberty to file and serve additional witness statements and bundle of documents, if any, within 14 days from the close of pleadings
  5. 5.The Parties directed to file and serve duly indexed, paginated and bound bundle of documents
  6. 6.Subject to compliance, the matter to proceed to full hearing without reverting to case conference
  7. 7.Costs of the Application shall abide the cause

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 50 Rule 7
  • Civil Procedure Act, Chapter 21, Laws of KenyaSection 95

Cases cited (4)

  • Teachers Service Commission v Kenya National Union of Teachers & 2 Others
    (2013) eKLR
  • Nicholas Kiptoo Arap Korir Salat versus Independent Electoral and Boundaries Commission & 7 Others
    (2014) eKLR
  • Philip Keiptoo Chemwolo & Another versus Augustine Kubende
    (1986) eKLR
  • Patriotic Guards Ltd V James Kipchirchir Sambu
    [2018] eKLR
Jurisdiction invoked
Original civil jurisdiction over the land dispute; discretion to extend time under Section 95 of the Civil Procedure Act, Chapter 21, Laws of Kenya

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kalaiya v Cheruiyot & 5 others (Environment and Land Case E394 of 2021) [2022] KEELC 2669 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2669/eng@2022-06-23

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