Kinyanjui v Joreth Limited & 2 others (Environment & Land Case 1189 of 2014) [2022] KEELC 3184 (KLR)
The bottom line
#Kenya's Environment and Land Court allowed a defendant to file documents late, holding res judicata doesn't apply where no earlier application was actually determined.
What this practically means
#Executive summary
#Key legal issues
#Whether the application was res judicata following the ruling of 24th February 2022 striking out documents filed without leave
Not res judicata; no previous application for leave by the Applicant had been filed and determined. What occurred on 24th February 2022 was an objection/informal application by the Plaintiff to strike out documents filed without leave, not a determination of an application for leave.
The court held that the plea of res judicata under Section 7 of the Civil Procedure Act requires a former suit or application between the same parties heard and finally decided by a competent court. The 24th February 2022 ruling only struck out documents filed without leave; the Applicant never mounted an application for leave, and the court had granted liberty to file any appropriate application. Hence the doctrine does not avail the Plaintiff.
Whether the court has discretion to grant leave and extend time for filing further documents and witness statements
Yes; under Section 95 of the Civil Procedure Act the court has discretion to enlarge time even after expiry, exercised judiciously. The Applicant's explanation (mistake of previous counsel) constituted sufficient cause, and the application was lodged within seven days of the striking out, hence without delay.
Applying Section 95 and the Salat criteria, the court found the reasons ventilated by the Applicant constituted sufficient cause to warrant exercise of discretion. The application was filed within seven days of the striking out of the documents, so there was no delay. Discretion must be exercised judiciously, not on caprice, per Patriotic Guards Ltd v Sambu.
Whether the Plaintiff would suffer prejudice or injustice if the application is allowed
No prejudice or injustice would be occasioned; the Plaintiff's case was far from closed, only one witness had testified, the Plaintiff could be recalled, and any residual prejudice is compensable by corresponding liberty and costs.
The hearing had only just commenced (Plaintiff testified from 5th October 2021) with four more witnesses to be called. The Plaintiff had avenues to respond: liberty to file further documents and witness statements, and to be recalled to answer new issues. Any prejudice could be atoned for by reciprocal liberty or by costs, hence no injustice would arise from granting leave.
Legal principles established
#- Res judicata can only succeed where the party invoking it demonstrates a previous suit or application between the same parties that was heard and finally determined by a court of competent jurisdiction.
- Under Section 95 of the Civil Procedure Act, the court may enlarge time fixed for doing any act even after the period has expired, exercisable judiciously.
- Prejudice capable of being compensated by corresponding liberty or by costs does not warrant refusal of leave to file further documents and witness statements.
Court orders
#- 1.Leave granted to the 2nd Defendant/Applicant to file and serve the Further Documents and Additional Witness Statements within 2 days from the date of the ruling
- 2.Liberty granted to the Plaintiff/Respondent to file and serve Further Documents and Additional Witness Statements, if any, within 3 days from the date of service by the 2nd Defendant/Applicant
- 3.Costs of the Application assessed and certified in the sum of Kshs. 15,000/= only, to be paid to the Plaintiff/Respondent within 7 days
- 4.The Substantive hearing of the matter to proceed on the 8th June 2022 as hitherto scheduled vide the proceedings of 24th February 2022
- Jurisdiction invoked
- Original civil jurisdiction; application under Section 95 of the Civil Procedure Act, Chapter 21, Laws of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kinyanjui v Joreth Limited & 2 others (Environment & Land Case 1189 of 2014) [2022] KEELC 3184 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3184/eng@2022-06-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.