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ELCAllowedNot stated in judgment

Njango & another v Kinuthia & another (Environment and Land Case E177 of 2024) [2025] KEELC 5269 (KLR)

Environment and Land Court (inferred from station; not stated in judgment)
7 July 2025
MOMogeni
942 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is an interlocutory Ruling by Mogeni J at Thika on a Notice of Motion dated 3/04/2025 in which the 1st and 2nd Defendants sought leave to file a Replying Affidavit out of time and an arrest of the Court's Ruling scheduled for 7/07/2025 in respect of the Plaintiffs' Notice of Motion dated 18/10/2024 seeking injunctive orders. The Applicants explained that they were away on business for six months and were not served with the earlier Application, which was allegedly served at premises they were not operating from, and that they had a triable defence. The Application was unopposed, and no submissions were filed by either party despite directions. Relying on Article 50(1) of the Constitution on the right of access to justice, Order 50 Rule 6 of the Civil Procedure Rules empowering the Court to enlarge time even after expiry, and the inherent jurisdiction under Section 3A of the Civil Procedure Act, the Court held that it was in the interests of justice to admit the Replying Affidavit, finding no demonstrated prejudice to the Respondents. The Court allowed the Application in terms of Prayers (3) and (4): it arrested the scheduled Ruling, admitted the Replying Affidavit out of time upon payment of requisite fees, directed service within 7 days, permitted the Plaintiffs 14 days to file submissions with corresponding leave for the Defendants, and set mention for 2/10/2025. Costs of the Application were to be borne by the Applicants.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Applicants should be granted leave to file a Replying Affidavit out of time
  2. 2.Whether the Court should arrest delivery of its Ruling scheduled for 7/07/2025 and admit the Replying Affidavit dated 3/04/2025 on record

Key legal issues

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01

Extension of time to file a Replying Affidavit out of time

Holding

The Court allowed the Application, finding it was in the interests of justice to admit the late Replying Affidavit since the Applicants were allegedly not properly served and no prejudice to the Respondents was demonstrated, the Application being unopposed

Reasoning

The Court invoked Article 50(1) on access to justice and the right to be heard, and Order 50 Rule 6 empowering enlargement of time. It noted the Applicants' explanation that they were away on business for six months and documents were served at premises they were not operating from. The Respondents filed no response, so the Court could not identify any prejudice. Section 3A's inherent power to make orders for the ends of justice reinforced the discretionary result.

p. 2

Legal principles established

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  • Where a limited time has been fixed for doing any act under the Civil Procedure Rules, the Court has power to enlarge that time even after the time has expired, on such terms as the justice of the case requires
  • In considering an extension of time, the Court must consider whether the opposing party would suffer prejudice

Court orders

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  1. 1.The Notice of Motion dated 3/04/2025 is allowed in terms of Prayer No (3) and (4)
  2. 2.The Court arrests the scheduled delivery of its Ruling on 07/07/2025
  3. 3.The Replying Affidavit dated 3/04/2025 filed out of time is admitted on record upon the Applicants paying the requisite fees
  4. 4.The Applicants to serve the Replying Affidavit upon the Plaintiffs not later than 7 days from the date of the Ruling
  5. 5.The Plaintiffs to file submissions to the Notice of Motion dated 18/10/2024 and serve the Respondents within 14 days of the Ruling, with the Defendants having corresponding leave to file responses
  6. 6.Mention to take a Ruling date on 2/10/2025
  7. 7.Costs of the Application to be borne by the Applicants

The bench

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One judgment of the whole court — no separate or dissenting opinions.

MO
majority

Wrote the judgment

Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 9 Rules 9(a) and 10, Order 22 Rule 22(1) and Order 51 Rule 1 of the Civil Procedure Rules, 2010

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Every party has a right to access any Court or Tribunal to have its dispute heard and determined in accordance with Article 50(1) of the Constitution of Kenya, 2010.
p. 2Right of access to justice and fair hearing
This Court did not see any prejudice that the Respondent would sufier or was likely to sufier if the Applicants herein exercised their constitutional right to be heard by filing the Replying Afidavit out of time.
p. 2Absence of prejudice to the Respondent
That the Court arrests the scheduled delivery of this Court’s Ruling on 07/07/2025.
p. 2Final orders - arrest of Ruling
The Replying Afidavit dated 3/04/2025 filed out of time is admitted on record upon the Applicants paying the requisite fees.
p. 3Final orders - admission of Replying Affidavit out of time
The cost of this Application to be borne by the Applicants.
p. 3Final orders - costs

Issues in the judgment

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minor

The name of the court is not stated in the judgment; only the station (Thika) and the judge appear

minor

Case number of the underlying suit and of the Application is not stated in the judgment

minor

The judgment refers to Order 50 Rule 6 of the Civil Procedure Rules although the Application did not cite that provision

minor

Inconsistent party labelling - the Ruling refers to both 'Respondent' and 'Plaintiffs/Respondents' for the same side

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, "Njango & another v Kinuthia & another (Environment and Land Case E177 of 2024) [2025] KEELC 5269 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5269/eng@2025-07-07

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