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ELCAllowedOriginating Summons No E015 of 2024· [2025] KEELC 2983 (KLR)

Yano v Kiptoo & another (Originating Summons E015 of 2024) [2025] KEELC 2983 (KLR)

Environment and Land Court
25 March 2025
MMM.D. Mwangi
559 words in judgment
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The bottom line

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Kenya's Environment and Land Court allowed a late replying affidavit, prioritising a fair hearing over strict procedural deadlines.

What this practically means

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Executive summary

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This is a ruling by the Environment and Land Court at Kajiado (M.D. Mwangi, J) on an application by the Defendants/Respondents to have their replying affidavit admitted on record despite being filed outside the 14-day timeline the court had granted on 24th February 2025 for filing the Defendants' response to the Originating Summonos. On 20th March 2025 the Defendants served their response late and also filed a Notice of Motion dated 18th March 2025 seeking conversion of the Originating Summons into a plaint. Counsel for the Defendants explained that the deponent, a security officer who travels extensively for work, was away on duty and could not execute the affidavit in time, signing it as soon as he was available. The Plaintiff's advocate objected, alleging deliberate delay of the hearing. Framing the issue as whether the replying affidavit ought to be admitted out of time, the court held that courts exist to do justice, citing the Court of Appeal's decision in Kamlesh Patni v DPP & 3 others (2015) KECCA for the proposition that courts must be redolent of fairness. Invoking the inherent powers reserved under sections 3 and 3A of the Civil Procedure Act, exercisable where just and equitable to secure a fair trial, the judge admitted the late replying affidavit to facilitate the just and expeditious resolution of the matter. The ruling was delivered virtually at Kajiado on 25th March 2025, with Mr. Ngaira appearing for the Plaintiff and Mr. Musa for the Defendants.

Key legal issues

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01

Whether a replying affidavit filed after court-ordered timelines may be admitted on record

Holding

The court invoked its inherent powers and admitted the late replying affidavit to secure a fair trial and just resolution of the matter.

Reasoning

The court reasoned that courts exist to do justice and, citing Kamlesh Patni v DPP, must reflect fairness and the best interests of those the law serves. Sections 3 and 3A of the Civil Procedure Act confer inherent powers exercisable whenever just and equitable, particularly to do justice between parties and secure a fair trial. The delay was explained by the deponent's duties as a security officer; justice favoured admission over technical compliance.

p. 2

Legal principles established

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  • Courts possess inherent powers under sections 3 and 3A of the Civil Procedure Act to admit pleadings and affidavits out of time where it is just and equitable to do so.

Court orders

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  1. 1.The Defendants' replying affidavit filed out of the timelines given by the court is admitted on record

Authorities

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Legislation

  • Civil Procedure Actsection 3
  • Civil Procedure Actsection 3A
  • Civil Procedure RulesOrder 37

Cases cited (1)

  • Kamlesh Patni –vs- DPP & 3 others
    (2015) KECCA
Jurisdiction invoked
Sections 3 and 3A of the Civil Procedure Act (inherent powers of the court)

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, "Yano v Kiptoo & another (Originating Summons E015 of 2024) [2025] KEELC 2983 (KLR)", Case Analysis (2025). Originating Summons No E015 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/2983/eng@2025-03-25

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