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ELCOtherNot stated in the judgment· [2025] KEELC 1490 (KLR)

Nairobi House Limited v Koinange; Koinange (Plaintiff to the Counterclaim); Nairobi House Limited & 4 others (Defendant to the Counterclaim) (Environment & Land Case 434 of 2017) [2025] KEELC 1490 (KLR)

Environment and Land Court
24 March 2025
OAO. A. Angote
789 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out a government defendant's late-filed defence, confirming that parties who never enter appearance cannot cross-examine or call witnesses.

What this practically means

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Executive summary

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This interlocutory ruling of the Environment and Land Court, Nairobi, by O. A. Angote J, dealt with the Plaintiff's objection to the Attorney General, appearing for the 3rd Defendant, cross-examining witnesses or calling witnesses. The Plaintiff argued that the AG had neither entered appearance nor filed a defence when the trial commenced on 07/02/2024, and that the pleadings and documents dated 05/01/2022 were only filed in May 2024, after the Plaintiff had closed its case and without leave of the court. The AG and counsel for the Defendant contended that the court had permitted the filing and that only pagination issues had arisen on the hearing date. The court reviewed its record and found no leave had been granted; the CTS confirmed the Memorandum of Appearance, Defence and bundle of documents were first filed on 23/05/2024, after the Plaintiff had testified and closed its case. Holding that the timelines for filing appearance and defence under the Civil Procedure Rules are strictly observed, the court found the pleadings and documents irregularly on record and prejudicial to the Plaintiff. The court expunged the Memorandum of Appearance, Defence and bundle of documents filed on 23/05/2024 and held that the 3rd Defendant has no right to cross-examine or call witnesses. No costs order was made. Judgment is dated 24th March 2025.

Key legal issues

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01

Regularity of filing pleadings and documents after commencement of trial without leave

Holding

The AG's Memorandum of Appearance, Defence and documents dated 5th January 2022 were first filed on 23/05/2024, after the Plaintiff closed its case, and were irregularly on record and were expunged

Reasoning

The court examined its own record and found no order granting the AG leave to file pleadings out of time. The CTS confirmed the pleadings were first filed on 23/05/2024, after the Plaintiff had testified and closed its case. The timelines in the Civil Procedure Rules are strict, and allowing late pleadings would be prejudicial and contrary to the rules governing civil proceedings, notwithstanding the plea for substantive justice.

p. 2

Legal principles established

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  • Pleadings and documents filed out of time and after trial has commenced, without leave of the court, are irregularly on record
  • A defendant without pleadings on record has no right of cross-examination or to call witnesses

Court orders

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  1. 1.The Memorandum of Appearance, the Defence and the bundle of documents filed by the Attorney General on behalf of the 3rd Defendant on 23/05/2024 are expunged from the record
  2. 2.The 3rd Defendant does not have the right to cross-examine any witness or call witnesses

Authorities

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Legislation

  • Civil Procedure RulesTimelines for filing Memorandum of Appearance and Defence
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court; Civil Procedure Rules (timelines for Memorandum of Appearance and Defence)

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, "Nairobi House Limited v Koinange; Koinange (Plaintiff to the Counterclaim); Nairobi House Limited & 4 others (Defendant to the Counterclaim) (Environment & Land Case 434 of 2017) [2025] KEELC 1490 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1490/eng@2025-03-24

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