Kochale & 5 others (Suing on behalf of the Residents of Laisamis Constituency and Karare Ward Marsabit County) v Lake Turkana Wind Power Ltd & 4 others; Lesianntam & 5 others (Interested Parties) (Environment & Land Case 163 of 2014) [2023] KEELC 18 (KLR)
The bottom line
#A Kenyan land court struck out late-filed documents because the plaintiffs gave no credible explanation for missing deadlines, and refused to extend their time.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiffs' documents were filed out of time and without leave
The documents were filed out of time and without leave; the record shows the plaintiffs' advocates merely apologised for delay on October 17, 2022 without obtaining leave.
The court examined the record of proceedings before the presiding judge on October 17, 2022 and found no indication that leave was sought or obtained for late filing. The contention that oral leave was granted was contradicted by the record, which showed only an apology for delay. The court therefore accepted the 1st defendant's contention that the impugned documents were filed out of time and without leave of court.
Whether the plaintiffs made out a case for extension of time
No case for extension of time was made out; no explanation was given in the replying affidavit and explanations from the bar were rejected.
The court held that judicial discretion must be exercised judicially and upon sound reasons. The plaintiffs offered no explanation in their replying affidavit; the explanations from the bar (communication breakdown, financial constraints) were unsupported by affidavit evidence and deemed incredible, particularly the claim that Marsabit county became inaccessible only after judgment. Distinguishing the cases cited by the plaintiffs, the delay here was inordinate and unexplained, and the 1st defendant would suffer prejudice as it could not respond to or rebut the plaintiffs' allegations.
Whether the impugned documents should be struck out
Having found the documents filed out of time and without leave, and no case for extension made, the 1st defendant was entitled to the striking-out orders.
The court reasoned logically from its prior findings: once the documents were established to have been filed out of time and without leave, and the plaintiffs failed to demonstrate a case for extension or admission out of time, it followed that the 1st defendant was entitled to the orders sought for striking out or expunging the impugned documents from the record.
Further extension of time for the defendants' regularization/setting apart process
A further extension of 6 months or until delivery of the ruling on the review application, whichever comes first, was granted.
The court noted the last extension for the regularization of setting apart the suit properties was due to expire on or about January 19, 2023, and the 1st defendant's review application would not be concluded by then. It therefore considered a further extension appropriate and granted 6 months from the date of the ruling or until the ruling on the review application, whichever came first.
Legal principles established
#- Judicial discretion to extend time must be exercised judicially and upon reason, not arbitrarily, capriciously or upon mere sympathy.
- Where there is delay in complying with court directions, the court may excuse it only where there is a reasonable explanation, considering the length of delay, explanation offered, prejudice to the adverse party and the effect on expeditious disposal.
Court orders
#- 1.The plaintiffs' plea for extension of time and admission of their documents out of time is declined.
- 2.The replying affidavit of Kochale Somo Jale sworn on October 3, 2022 is struck out.
- 3.The grounds of opposition dated October 3, 2022 are struck out.
- 4.The preliminary objection dated November 22, 2022 and the affidavit in support thereof are struck out.
- 5.The written submissions dated November 23, 2022 are struck out.
- 6.The defendants are granted an extension of 6 months from the date of the ruling or until delivery of the ruling on the 1st defendant's application for review, whichever comes first.
- 7.Each party shall bear its own costs of the application.
- Jurisdiction invoked
- Article 50(1) of the Constitution of Kenya 2010; sections 1A, 1B and 3A of the Civil Procedure Act (Cap 21); section 13(1) & (7) of the Environment and Land Court Act, 2011; direction no. 1 of the Environment and Land Court Practice Directions 2014
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kochale & 5 others (Suing on behalf of the Residents of Laisamis Constituency and Karare Ward Marsabit County) v Lake Turkana Wind Power Ltd & 4 others; Lesianntam & 5 others (Interested Parties) (Environment & Land Case 163 of 2014) [2023] KEELC 18 (KLR)", Case Analysis (2023). Not stated in the extract (suit pending before the Environment and Land Court, Marsabit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18/eng@2023-01-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.