Njoroge & 2 others v Sikuta (Environment & Land Case 170 of 2016) [2023] KEELC 497 (KLR)
The bottom line
#A Kenyan court threw out a last-minute attempt to add evidence to an old land case, warning that delay tactics will not stop hearings.
What this practically means
#Executive summary
#Key legal issues
#Whether the Defendant could be granted leave to file a supplementary list of documents out of time under Articles 50(1) and 159 of the Constitution and Sections 1A, 1B and 3A of the Civil Procedure Act
No. The cited constitutional and overriding-objective provisions are not procedural provisions governing filing and exchange of documents; the applicable law is Order 7 Rule 5, Order 11 Rule 3 and the Mutunga Rules, 2014, which require documents to be filed with the Defence and do not contemplate later supplementation.
The court held that Article 50(1) and Article 159(2)(d), while relevant to fair hearing and technicality, do not provide the procedure for filing documents. Article 159(2)(d) is not a refuge for careless parties. Order 7 Rule 5(d) requires documents to accompany the Defence, and by expressio unius est exclusio alterius no leave to file documents later was contemplated. A very high bar must be set against late filing, analogous to the stringent test for review on discovery of new evidence, to guard against fishing expeditions.
Whether the applicant discharged the burden for extension of time under the Salat principles
No. The applicant did not lay a basis to the court's satisfaction, brought the application with undue delay, and the respondents would be prejudiced, including by the possibility the documents were obtained unlawfully.
Applying the seven Salat principles, the court found extension of time is an equitable remedy, not a right. The applicant gave no explanation for the delay since filing his Defence in 2017, and the documents sought were essentially the same as documents Nos. 8 and 21 already filed in his List of Documents on January 17, 2017. He also failed to dislodge the position that he may have obtained the copies unlawfully from the CID, violating the plaintiffs' privacy.
Whether the supporting affidavit and its annextures were competent
No. The annextures were not commissioned as required by Rule 9 of the Rules under Section 6 of the Oaths and Declarations Act, rendering the affidavit bare in respect of the exhibits.
Rule 9 of the Oaths and Declarations Rules requires documents to be commissioned by the commissioner before whom the affidavit is sworn. The annextures WS1(a) and (b) did not comply, so the affidavit was incompetent in relation to the paragraphs purporting to introduce exhibits, leaving the application factually unsupported.
Whether the application was an abuse of court process
Yes. Filed on the eve of the hearing in an old 2016 matter, it was a device and ploy to scuttle the hearing and was dismissed with costs.
The application was filed a week before the hearing date in a 2016 suit, without a response timeline compliant with Order 51 Rule 14(2). The documents sought were already substantially on record. The court found the application glaringly abusive and designed to adjourn the suit, and ordered that the suit proceed forthwith.
Legal principles established
#- Article 159(2)(d) of the Constitution is not a panacea that cures all defaults of litigation; parties who deliberately or carelessly fail to take steps prescribed by law should not receive its protection
- A party seeking extension of time or leave to comply out of time bears the burden of satisfying the Salat principles: reasonable explanation for delay, absence of prejudice, no undue delay, and deservingsness as an equitable remedy
- On a plain and grammatical interpretation of Order 7 Rule 5 of the Civil Procedure Rules, 2010, read with the maxim expressio unius est exclusio alterius, there is no room for a party to file a further list of documents after filing their Defence
Court orders
#- 1.The Application dated January 20, 2023 is dismissed
- 2.Costs of the application to the Respondents
- 3.The suit to proceed forthwith (hearing to proceed as scheduled)
- Jurisdiction invoked
- Articles 50(1) and 159 of the Constitution of Kenya and Sections 1A, 1B and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njoroge & 2 others v Sikuta (Environment & Land Case 170 of 2016) [2023] KEELC 497 (KLR)", Case Analysis (2023). Not stated in the judgment (suit filed November 25, 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/497/eng@2023-02-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.