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ELCDismissedNot stated in judgment· [2024] KEELC 6984 (KLR)

Eldama Ravine Road Residents Association & 3 others v Minara Homes Limited & 5 others (Environment & Land Petition E059 of 2022) [2024] KEELC 6984 (KLR)

Environment and Land Court
17 October 2024
2,146 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court refused to reinstate a dismissed land petition, warning that missed court deadlines need solid explanations.

What this practically means

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Executive summary

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The petitioners filed a petition and an application dated 7.12.2022 seeking injunctive orders against the respondent. On 11.5.2023 the court dismissed both the petition and that application because the petitioners had failed to exhaust the dispute resolution mechanisms available under the relevant statutes, including section 61 of the Physical and Land Use Planning Act. The petitioners then filed an application dated 5th June 2023 seeking to set aside that ruling, reinstate the petition, extend time to file their replying affidavit and written submissions (filed on 18th and 19th April 2023 outside court-ordered timelines), and in the alternative to have those documents admitted. The application was supported by an affidavit of Herman Omiti, advocate for the petitioners, who invoked the court's inherent powers under section 3A of the Civil Procedure Act and Article 159 of the Constitution, and cited authorities on extension of time including the Salat case. The 1st, 5th and 6th respondents opposed, arguing the application did not meet the threshold for setting aside or review, offended the functus officio doctrine, and offered no explanation for non-compliance with directions. Mbugua J held that the application was in substance one for review under section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, that the grounds advanced did not fall within the enumerated grounds of review, and that the court had in fact considered the petitioners' pleadings in the impugned ruling. The court found no plausible explanation for the late filing and emphasized that compliance with directions is weighty in the administration of justice. The application was dismissed with costs to the 1st, 5th and 6th respondents.

Key legal issues

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01

Whether the court could set aside its own ruling of 11.5.2023

Holding

The application was in substance one for review under Section 80 of the Civil Procedure Act and Order 45; the grounds advanced did not fall within the enumerated grounds for review, so it failed.

Reasoning

The court held that the petitioners were indirectly seeking a review, governed by Section 80 and Order 45. Review is available only on the grounds enumerated in Order 45 Rule 1. The petitioners' complaint that the court did not consider their late replying affidavit and submissions was not a ground of review, and the court had in fact considered the pleadings. Late-filed affidavits and submissions cannot vary foundational pleadings.

p. 3
02

Whether extension of time should be granted for filing the replying affidavit and submissions

Holding

Extension of time was refused because no plausible explanation was given for the late filing, and the underlying review having failed, extension served no purpose.

Reasoning

Extension of time is a creature of equity requiring a party to lay a basis showing they were not at fault. The petitioners merely stated they filed late without justification. The court emphasized that compliance with directions and time standards is central to case management and the administration of justice, citing the Supreme Court's condemnation of filing documents at the 11th hour.

p. 5

Legal principles established

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  • A party is not entitled to seek review of a judgment merely for a rehearing; departure from the finality of judgments is justified only in substantial and compelling circumstances
  • Compliance with court directions on timelines is weighty as it affects the overall administration of justice

Court orders

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  1. 1.The application dated 5.6.2023 is dismissed
  2. 2.Costs of the application awarded to the 1st respondent as well as the 5th and 6th respondents
Jurisdiction invoked
Inherent powers under Section 3A of the Civil Procedure Act; application for review under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Eldama Ravine Road Residents Association & 3 others v Minara Homes Limited & 5 others (Environment & Land Petition E059 of 2022) [2024] KEELC 6984 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6984/eng@2024-10-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.