Ogogoh & 4 others v Dahir & 6 others; Kenya Forest Services (Interested Party) (Environment and Land Petition E015 of 2023) [2024] KEELC 5386 (KLR)
The bottom line
#A Mombasa court protected fishermen's access to disputed coastal land, punished late filing, and refused consolidation of related cases.
What this practically means
#Executive summary
#Key legal issues
#Late filing of pleadings and submissions without leave
The 2nd respondent's submissions dated 29th April 2024, replying affidavit sworn 10th June 2024 and submissions dated 12th June 2024 were struck out as they exposed the petitioners to prejudice.
The court held timelines ensure fairness and efficiency, but the overriding concern is whether late filing prejudices other parties. The 2nd respondent had no leave to file out of time, the petitioners had no opportunity to respond, and the material was filed after the ruling date had been fixed, so the documents were struck out on the court's own motion.
Interlocutory injunction over the suit property
The injunction in terms of prayer (3) was granted as the application was unopposed and the supporting depositions unchallenged, to protect the 4th petitioner's members' fishing livelihood pending the petition.
No replying papers were on record after striking out the late affidavit; a conservatory order in terms of prayer 2 had been in force since 14th December 2023. From the unchallenged affidavit of Julius Ogogoh the court found the members' livelihood dependent on fishing would be prejudiced absent an injunction pending hearing of the petition.
Consolidation with ELC E004 of 2023 and E012 of 2023
The consolidation application was dismissed; the court instead directed transfer of the petition to the court seized of the two suits for further directions.
Although the suit property and respondents overlapped with the two civil suits, parties had not addressed the status of those suits, which were commenced as civil suits unlike this petition. The court preferred transfer for directions before the court handling both suits rather than consolidation.
Costs of the applications
Costs of both applications were ordered to abide the outcome of the petition.
Given the nature of the claim and contestations, the court considered it appropriate that costs not be awarded immediately in either application but await the final outcome of the petition.
Legal principles established
#- Filing of affidavits and submissions is governed by procedural rules; late filings are struck out where they prejudice other parties.
- Even an unopposed application must satisfy the court that the legal threshold for the relief is met.
Court orders
#- 1.Injunction order in terms of prayer (3) of the petitioners' notice of motion dated 4th December 2023 granted, restraining dealing with the suit property pending hearing and determination of the petition.
- 2.The 2nd respondent's notice of motion dated 6th March 2024 seeking consolidation dismissed.
- 3.On the court's own motion, the petition to be placed before the court dealing with ELC No. E004 of 2023 and E012 of 2023 for further directions and hearing.
- 4.Costs of both applications to abide the outcome of the petition.
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over the suit property (land matter; specific constitutional provision not cited in the extracted judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ogogoh & 4 others v Dahir & 6 others; Kenya Forest Services (Interested Party) (Environment and Land Petition E015 of 2023) [2024] KEELC 5386 (KLR)", Case Analysis (2024). ELC Petition, Mombasa (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5386/eng@2024-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.