Marriot Africa International Limited v Murigu & 3 others; Ukombozi Holdings Ltd (Interested Party); Kangaita Coffee Estates Limited (Counter Claimer); Trendseters Investments Ltd & 4 others (Defendant to the Counterclaim) (Environment & Land Case 4 of 2021) [2025] KEELC 1453 (KLR)
The bottom line
#Kenya's Environment and Land Court threw out documents and a witness filed late without permission, warning that springing evidence at the last minute amounts to litigation by ambush.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to validate documents filed out of time and without leave
The court lacks jurisdiction to validate such filings; they are a nullity. Leave must be obtained before filing out of time and does not issue as a matter of right.
Relying on the Supreme Court's decisions in Nicolas Kiptoo Arap Korir Salat v IEBC and County Executive of Kisumu v County Government of Kisumu, the court held that validating out-of-time filings without leave would amount to sanitizing an illegality. Compliance with statutory timelines is mandatory and a tenet of the rule of law. Counsel for the 4th and 5th Defendants did not even account for the failure to file within time.
Prejudice and the right to fair hearing
Admitting the impugned pleadings, documents and witness statement would occasion undue prejudice and grave injustice to the Plaintiff, whose witness had closed its case without knowledge of them.
The Plaintiff closed its case on 22nd February 2024, before the impugned documents were filed on 25th October 2024. The Plaintiff's witness had no opportunity to respond to the contents. Article 50(1) and (2) of the Constitution requires equal opportunity and fair hearing; discovery of documents is a critical tenet of fair trial, and springing evidence at the tail end is litigation by ambush.
Legal principles established
#- A party desirous to file any pleadings and/or documents out of time must obtain leave beforehand; documents filed without leave are a nullity incapable of validation.
- Late introduction of documents and evidence at the tail end of proceedings constitutes litigation by ambush and violates the right to fair hearing.
Court orders
#- 1.The Objection herein be and is hereby upheld.
- 2.The Statement of defence to the counterclaim; the list and bundle of documents and the witness statement filed by the honourable attorney general be and are hereby expunged from the record of the court.
- 3.The Intended witness by the 4th and 5th Defendants to the counterclaim is hereby barred from testifying.
- 4.Costs of the objection shall abide the outcome of the suit/proceedings.
- Jurisdiction invoked
- Inherent jurisdiction of the Environment and Land Court over pleadings and evidence before it; provisions of Article 10(2), 27(1)-(2), 50(1)-(2) and 159(2)(d) of the Constitution and Section 1B of the Civil Procedure Act were invoked
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); Kangaita Coffee Estates Limited (Counter Claimer); Trendseters Investments Ltd & 4 others (Defendant to the Counterclaim) (Environment & Land Case 4 of 2021) [2025] KEELC 1453 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1453/eng@2025-03-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.