Marriot Africa International Limited v Murigu & 3 others; Ukombozi Holdings Ltd (Interested Party) (Environment & Land Case 4 of 2021) [2024] KEELC 1699 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a late application to add over 1,000 pages of evidence, ruling unexplained delay and filing without leave cannot be fixed afterwards.
What this practically means
#Executive summary
#Key legal issues
#Timeliness and explanation for delay
The application was mounted with unreasonable and inordinate delay and no explanation for the delay was tendered; the application is defeated by the doctrine of laches
Time is reckoned from the timelines under Order 7 Rule 5 and Order 11 of the Civil Procedure Rules, 2010. The trial conference directions of 23 January 2023 and 23 March 2023 were not complied with. A party seeking equitable indulgence must account for every bit of the delay; absent any scintilla of explanation, an adverse inference of deliberateness or negligence suffices and the application is ipso facto defeated by laches.
Good faith of the application
The application reeks of mala fides and abuse of court process; the orders sought contradict unreviewed orders of 23 March 2023 granting a final window to file documents
The Applicant had earlier been granted indulgence to file the witness statement and bundle of documents, with an express default clause forfeiting the liberty. It never complied, never sought review or extension of the orders, and now seeks contradictory orders without explaining the earlier default. Repeatedly seeking the same indulgence without explanation evidences bad faith and abuse of due process.
Prejudice and admissibility of the intended evidence
The voluminous documents (over 1000 pages) and the witness statement would occasion prejudice and grave injustice; some documents, including Certificates of Title obtained during the suit contrary to lis pendens, are inadmissible under Section 35(2) of the Evidence Act
PW1 had already testified and been cross-examined without the Applicant's materials; admitting them midstream could open a new cause of action, necessitate recall of PW1, joinders and amendments, contrary to Sections 1A and 1B of the Civil Procedure Act and Article 159(2)(b). Voluminous additional evidence must be approached with abundant caution per Raila Amollo Odinga and Attorney General vs Zinj Limited.
Jurisdiction to admit documents filed before leave was granted
Documents filed prior to obtaining leave are a nullity and cannot be adopted, ratified or deemed validly filed ex-post-facto
The Applicant knew leave was required before filing out of time but filed the documents first and sought ratification afterwards. Applying the Salat and County Executive of Kisumu dicta of the Supreme Court mutatis mutandis, filing before leave is presumptive and inappropriate, rendering the documents nullities; the prayer to deem them filed is not legally tenable.
Legal principles established
#- A party seeking equitable discretion (including extension of time) must account for every bit of the delay; discretion cannot be exercised in vacuum
- Where an explanation for delay is not offered, the court may infer the delay was deliberate or negligent and refuse discretion
- Documents filed out of time and without prior leave are a nullity; a court cannot remedy that illegality ex-post-facto by deeming them filed
- Voluminous additional evidence tendered midstream occasions prejudice and the court must act with abundant caution
Court orders
#- 1.The Application dated the 16th of February 2024 is dismissed with costs to the 1st, 3rd and 4th Defendants/Respondents only
- Jurisdiction invoked
- Sections 1A, 1B, 3 and 3A of the Civil Procedure Act, Chapter 21 Laws of Kenya and Article 159(2)(d) of the Constitution 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Marriot Africa International Limited v Murigu & 3 others; Ukombozi Holdings Ltd (Interested Party) (Environment & Land Case 4 of 2021) [2024] KEELC 1699 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1699/eng@2024-04-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.